5 ms·

I'm not sure I fully understand or agree with your take on the 9th amendment as it relates to originalism. Many of the problems I see and both issues presented

I'm not sure I fully understand or agree with your take on the 9th amendment as it relates to originalism. Many of the problems I see and both issues presented by the go present due to a moving target interpretation of the Constitution (Filburn and section 1 drugs). Regarding abortion, the Commerce Clause should already protect the people from federal prohibition of abortion, as well as explicit federal prohibition on states prohibiting abortion. The transaction happens wholly with a state. 10A should apply here, imo. I don't see how 9A presents in such a way that it grants a right to abortion, but I do have trouble with the blanket extension of innumerated rights and their interaction with 10A.

mjburgess 3y ago
It isnt just the 9th. It's throughout the constitution, and indeed why it's a philosophical document, not a legal one. The people who wrote the constitution were not trying to enumerate a finite number of laws which were contemporary to their society such that the SC prevented that society from changing these laws. That's a radical misunderstanding, and the heart of "originalism" which explicitly misunderstands the original. It's a little like "biblical literalists" misreading biblical stories and thinking that's their original interpretation -- when even, eg., Paul reads OT stories allegorically. In this sense the bible prescribes allegorical interpretation; in the similar way the constitution prescribes philosophical elaboration. The purpose was to enumerate a series of principles to prevent tyranny, and have these require interpretation for any given society. Insofar as the SC asks, "what would the authors think about issue X", they're doing the opposite of what those authors wanted from the constitution. They wrote a document which was at the time routinely violated by the laws and practices of their own society. The principles are supposed to drag the executive away from tyranny. In this sense the police arresting a woman for having an abortion in contemporary society is precisely what those principles were designed to prevent -- and even if the people who wrote them would have not recognised it. Their (historical) recognition of tyranny isnt the basis on which the constitution precludes tyranny -- that's the whole point of giving principles, not laws. If they thought they could always say what tryanny was, they'd list all the laws to prvent it.

mjburgess 3y ago

It isnt just the 9th. It's throughout the constitution, and indeed why it's a philosophical document, not a legal one. The people who wrote the constitution were not trying to enumerate a finite number of laws which were contemporary to their society such that the SC prevented that society from changing these laws. That's a radical misunderstanding, and the heart of "originalism" which explicitly misunderstands the original. It's a little like "biblical literalists" misreading biblical stories and thinking that's their original interpretation -- when even, eg., Paul reads OT stories allegorically. In this sense the bible prescribes allegorical interpretation; in the similar way the constitution prescribes philosophical elaboration. The purpose was to enumerate a series of principles to prevent tyranny, and have these require interpretation for any given society. Insofar as the SC asks, "what would the authors think about issue X", they're doing the opposite of what those authors wanted from the constitution. They wrote a document which was at the time routinely violated by the laws and practices of their own society. The principles are supposed to drag the executive away from tyranny. In this sense the police arresting a woman for having an abortion in contemporary society is precisely what those principles were designed to prevent -- and even if the people who wrote them would have not recognised it. Their (historical) recognition of tyranny isnt the basis on which the constitution precludes tyranny -- that's the whole point of giving principles, not laws. If they thought they could always say what tryanny was, they'd list all the laws to prvent it.