4 ms·

The Supreme Court itself wasn't really defined by the constitution - they conveyed a need for it - but not how to structure it, given the lack of historical dat

The Supreme Court itself wasn't really defined by the constitution - they conveyed a need for it - but not how to structure it, given the lack of historical data. They also foresaw the problems with parties but didn't take enough steps to retire them. This is why things like Roe V. Wade are (/were) so controversial. Does the Supreme Court have the right to imagine new rights to abortion with no textual basis in the Constitution? Even RBG didn't think so. OTOH, given the recent election results, Abortion is finally starting to become settled law - something the USSC could not do. Democracy works again. That said - they got far more right then wrong, and ditching the lessons they learned first are a big reason we are in the state we are in now. Once upon a time, leaders actually had to learn history to be leaders. Now-adays, not so much.

krapp 3y ago
The Supreme Court's power of judicial review isn't defined in the text of the Constitution. It was applied by the Court to itself not by interpreting the text but reading between the lines and deciding it should have been there. It seems to me that if we can accept that then we've already accepted that the Supreme Court can imagine new rights with no textual basis in the Constitution. After all, the Constitution isn't meant to describe an exhaustive list of rights so much as maximally bind the Federal government as to what rights it is allowed to abridge. So the concept of "rights having a textual basis in the Constitution" is nonsensical, ̶a̶s̶ ̶t̶h̶e̶ ̶C̶o̶n̶s̶t̶i̶t̶u̶t̶i̶o̶n̶ ̶i̶t̶s̶e̶l̶f̶ ̶c̶l̶a̶i̶m̶s̶ ̶t̶h̶a̶t̶ ̶r̶i̶g̶h̶t̶s̶ ̶a̶r̶e̶ ̶g̶r̶a̶n̶t̶e̶d̶ ̶b̶y̶ ̶a̶ ̶"̶C̶r̶e̶a̶t̶o̶r̶,̶"̶ ̶n̶o̶t̶ ̶a̶ ̶g̶o̶v̶e̶r̶n̶m̶e̶n̶t̶.̶ (edit: ... ok that was in the Bill of Rights my bad but still, rights aren't defined by the Constitution.) Also, RBG believed abortion could be supported as Constitutional right, but she preferred an argument on the basis of equal protection over the arguments from privacy that underpinned Roe V. Wade, which she believed were too weak and easily undermined (and she was correct.) The only relevant question per the Constitution is not whether the right to an abortion exists, but whether the Federal government should be allowed to interfere with that right, whether states should be allowed to interfere with that right, or whether that right should be left in its default state of being claimed by the people.
- AnimalMuppet 3y ago
  Not the Bill of Rights, either. The Declaration of Independence. No, there's another question on abortion. Is abortion a right that anyone should have? Bluntly, is it murder, or not? If it's murder, then it's not a right that anyone should have, whether or not that inconveniences the mother. So do you regard the fetus as human (and therefore entitled to the same protection as other humans), or not? That's not a question that you can answer by law, or by constitution. That's a religion/philosophy/worldview question, on which there is no consensus. Which is why the abortion question is such a mess. But nothing short of resolving "is it human, or not?" is going to solve the question. If it's human, then killing it is murder, and compromise is completely unacceptable. You just don't compromise on murdering people.
  - krapp 3y ago
    > Is abortion a right that anyone should have? Bluntly, is it murder, or not? If it's murder, then it's not a right that anyone should have, whether or not that inconveniences the mother. You're oversimplifying the argument, because not every case of killing another human being is considered murder. "Murder" is a legal construct. The right to kill another human being does exist in certain circumstances, such as in self defense, warfare or capital punishment, but the right to commit "murder" does not. The US has an entire Constitutional amendment to protect the right of people to kill other people "in defense of a free state." Even if one does concede that a zygote at the moment of conception is fully equal to human being, it still doesn't follow that abortion is murder. Especially not when the health of the mother is threatened (which would arguably make abortion in that case a matter of self defense.) And it's honestly weird to me that shooting a person will be defended to the ends of the earth by Americans as sacrosanct, while in numerous states it's now a crime to even search the web for a morning after pill, and women are forced to carry even stillborn fetuses to term. Let's not pretend there is even an objective definition of "human" in regards to American jurisprudence, there never has been. As to whether someone should have that right, it exists whether anyone wants it to or not. The question at hand is whether government should be allowed to abridge that right, or made to respect it. I believe there is no argument that the government should be allowed to abridge the right to abortion if the test is strict constitutional originalism, and the intent of the founders relative to their culture. When the Constitution was ratified, abortion was seen as a personal choice, shameful in the way that everything related to women was shameful, but not illegal. Rightly a matter left to the people.

krapp 3y ago

The Supreme Court's power of judicial review isn't defined in the text of the Constitution. It was applied by the Court to itself not by interpreting the text but reading between the lines and deciding it should have been there. It seems to me that if we can accept that then we've already accepted that the Supreme Court can imagine new rights with no textual basis in the Constitution. After all, the Constitution isn't meant to describe an exhaustive list of rights so much as maximally bind the Federal government as to what rights it is allowed to abridge. So the concept of "rights having a textual basis in the Constitution" is nonsensical, ̶a̶s̶ ̶t̶h̶e̶ ̶C̶o̶n̶s̶t̶i̶t̶u̶t̶i̶o̶n̶ ̶i̶t̶s̶e̶l̶f̶ ̶c̶l̶a̶i̶m̶s̶ ̶t̶h̶a̶t̶ ̶r̶i̶g̶h̶t̶s̶ ̶a̶r̶e̶ ̶g̶r̶a̶n̶t̶e̶d̶ ̶b̶y̶ ̶a̶ ̶"̶C̶r̶e̶a̶t̶o̶r̶,̶"̶ ̶n̶o̶t̶ ̶a̶ ̶g̶o̶v̶e̶r̶n̶m̶e̶n̶t̶.̶ (edit: ... ok that was in the Bill of Rights my bad but still, rights aren't defined by the Constitution.) Also, RBG believed abortion could be supported as Constitutional right, but she preferred an argument on the basis of equal protection over the arguments from privacy that underpinned Roe V. Wade, which she believed were too weak and easily undermined (and she was correct.) The only relevant question per the Constitution is not whether the right to an abortion exists, but whether the Federal government should be allowed to interfere with that right, whether states should be allowed to interfere with that right, or whether that right should be left in its default state of being claimed by the people.

AnimalMuppet 3y ago
Not the Bill of Rights, either. The Declaration of Independence. No, there's another question on abortion. Is abortion a right that anyone should have? Bluntly, is it murder, or not? If it's murder, then it's not a right that anyone should have, whether or not that inconveniences the mother. So do you regard the fetus as human (and therefore entitled to the same protection as other humans), or not? That's not a question that you can answer by law, or by constitution. That's a religion/philosophy/worldview question, on which there is no consensus. Which is why the abortion question is such a mess. But nothing short of resolving "is it human, or not?" is going to solve the question. If it's human, then killing it is murder, and compromise is completely unacceptable. You just don't compromise on murdering people.
- krapp 3y ago
  > Is abortion a right that anyone should have? Bluntly, is it murder, or not? If it's murder, then it's not a right that anyone should have, whether or not that inconveniences the mother. You're oversimplifying the argument, because not every case of killing another human being is considered murder. "Murder" is a legal construct. The right to kill another human being does exist in certain circumstances, such as in self defense, warfare or capital punishment, but the right to commit "murder" does not. The US has an entire Constitutional amendment to protect the right of people to kill other people "in defense of a free state." Even if one does concede that a zygote at the moment of conception is fully equal to human being, it still doesn't follow that abortion is murder. Especially not when the health of the mother is threatened (which would arguably make abortion in that case a matter of self defense.) And it's honestly weird to me that shooting a person will be defended to the ends of the earth by Americans as sacrosanct, while in numerous states it's now a crime to even search the web for a morning after pill, and women are forced to carry even stillborn fetuses to term. Let's not pretend there is even an objective definition of "human" in regards to American jurisprudence, there never has been. As to whether someone should have that right, it exists whether anyone wants it to or not. The question at hand is whether government should be allowed to abridge that right, or made to respect it. I believe there is no argument that the government should be allowed to abridge the right to abortion if the test is strict constitutional originalism, and the intent of the founders relative to their culture. When the Constitution was ratified, abortion was seen as a personal choice, shameful in the way that everything related to women was shameful, but not illegal. Rightly a matter left to the people.