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> State governments are not governments of enumerated powers. They inherited the plenary authority of the British parliament, and have general police powers to

> State governments are not governments of enumerated powers. They inherited the plenary authority of the British parliament, and have general police powers to regulate the health, welfare, and morals of citizens. How fortunate then that we have the 14th Amendment to prevent state governments from "abridg[ing] the privileges and immunities of citizens of the United States" — which textualists and originalists presumably would say can be authoritatively defined by the Congress using its enforcement power under section 5 of 14A. So if the Dems retake the House and keep the Senate in 2024, then we can expect federal legislation reinstating women's Roe rights as "privileges and immunities of citizens of the United States," no matter what the Taliban wing of "Christianity" in Texas, Missouri, etc., might prefer.

rayiner 3y ago
Can Congress define new “privileges and immunities” under Section 5? I think you might have a federalism problem, insofar as both medical procedures and The definition of homicide are traditionally regulated by the states. But if you can get around that, sure. My point is simply that state governments get to regulate both morality and medical procedures unless some higher law says they can’t. Notions of individual choice and personal autonomy don’t by themselves constrain state power in any way.
- dctoedt 3y ago
  > I think you might have a federalism problem I don't recall seeing the word federalism in the Constitution. Yeah, there's the Tenth Amendment. But one could make a compelling textualist argument — and perhaps even a historical one — that the Civil War Amendments were explicitly and broadly intended to trump (pardon the expression) the Tenth, and not just concerning the liberation of formerly-enslaved blacks. Then again, some of the SCOTUS conservatives seem to move the goalposts whenever it seems good to them. And in any case, Breyer-style "traditionalism" doesn't seem to be part of their toolkit.

rayiner 3y ago

Can Congress define new “privileges and immunities” under Section 5? I think you might have a federalism problem, insofar as both medical procedures and The definition of homicide are traditionally regulated by the states. But if you can get around that, sure. My point is simply that state governments get to regulate both morality and medical procedures unless some higher law says they can’t. Notions of individual choice and personal autonomy don’t by themselves constrain state power in any way.

dctoedt 3y ago
> I think you might have a federalism problem I don't recall seeing the word federalism in the Constitution. Yeah, there's the Tenth Amendment. But one could make a compelling textualist argument — and perhaps even a historical one — that the Civil War Amendments were explicitly and broadly intended to trump (pardon the expression) the Tenth, and not just concerning the liberation of formerly-enslaved blacks. Then again, some of the SCOTUS conservatives seem to move the goalposts whenever it seems good to them. And in any case, Breyer-style "traditionalism" doesn't seem to be part of their toolkit.