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> The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress
by StewardMcOy 4y ago
> The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.
Right, correct. However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. That's not true, the Court can enforce the due process clause even when there's no explicit federal law or enumerated right.
If this were not the case, Loving v. Virginia could not have been decided. The court ruled that the state law had violated both the equal protection and the due process clauses. Congress hadn't passed a law mandating that states allow interracial marriage, and it wasn't explicitly enumerated in the constitution.
The court ruled that
1. Marriage is a fundamental constitutional right
2. States depriving people of that right was unconstitutional
There's nothing stopping the court from using those exact same clauses to rule
1. Abortion prior to viability is a fundamental constitutional right
2. States depriving people of that right was unconstitutional
Of course, you could go all Andrew Jackson on it and say that the court has overstepped its bounds (though I'd disagree), but the court ultimately won. Given how vague a lot of the language we're talking about here is, history has shown repeatedly the court can essentially interpret it as strictly or as loosely as they want, as long as they can convince the rest of the country to go along with it.
> So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause?
Like I said, I don't think I should look to the privileges or immunities clause first, but I could definitely envision a much broader interpretation of what "privileges or immunities" are to cover any fundamental human right.
> “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Because this doesn't say "exclusive power", it the court has leeway to interpret itself into a role here. It may have been intended to be an exclusive power, but the court is very big on plain language.
- SllX 4y ago> However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. Actually no. I think there are unenumerated rights: marriage, procreation, inheritance, paternal and maternal rights, and countless others. Abortion is not one of them unless you are also arguing against the paternal interest of the Father and the life interest of fetus (mind I’m not going to say that begins at birth, I actually don’t have a strong position on that specific question at this time). That’s what makes it no longer simply a matter of privacy, or bodily autonomy or whatever substantive due process claim you could make; another human being is implicated. That doesn’t mean we shouldn’t pass any legislation at all legalizing abortion to a point, but we have to make a political determination where that point is, and that will vary State to State, and it has to be legislation, not the Courts. That said I’ll give you this, if the courts want to step in at some point and protect the right to abortion in the cases of ectopic pregnancies, I’m all for it. I just hope they never have to.