[I]f they overturn Roe, they will not be criminalizing abortion. Nor will they be mandating it be legal. They will be allowing the states to decide for themselves. If a state chooses to restrict abortions through legislative action, it will not be “defying the Supreme Court” or undermining its authority. They will actually be following the court’s ruling by making their own choice. The same goes for states that elect to keep the procedure legal or even further safeguard it. If anything, the Supreme Court’s relevance and authority would be exemplified by such scenarios.As the author notes, if you want an example of real confusion created between state and federal law, you have only to look at conflicts on gun law and drug law, and the problem isn't the Supreme Court, it's the other branches of government.
Dodd. v. Roe
Setting aside for a moment what the law of abortion should be, what the frantic controversy over the Supreme Court's impending ruling in Dodd suggests most strongly is that almost no one in the U.S. has the least notion how the three branches of government interact or what it means to have a system composed of federal and state governments, each with its own proper sphere. It's just too complicated, I think, and editors of moderately respectable newspapers suffer a brain freeze over the notion that there is a Single True Law enforced by a Single Dear Leader.Jazz Shaw at HotAir often gets these things right:
"what the frantic controversy over the Supreme Court's impending ruling in Dodd suggests most strongly is that almost no one in the U.S. has the least notion how the three branches of government interact or what it means to have a system composed of federal and state governments, each with its own proper sphere"
ReplyDeleteDon't know...or don't care? There are a lot of people who want the laws & rules to be what they want them to be, and have no patience with issues about 'who decides.'
It strikes me that it takes a pretty good abstract-reasoning capability to be able to see the importance of the latter criterion. And, given the political alignments, it doesn't seem that this ability is any more present in people with good educational credentials (and, presumably, reasonably high IQs) than it is in those less-favored.
Couple of points. The constitutional right identified in "Roe" ( inferred to exist among unenumerated unspecified rights protected by the 9th amendment for "the people" and secured by the 10th amendment by "the states" OR by the people themselves) was not a right to abortion. It was a right to PRIVACY. It's the right of people to be "secure in their person". As mentioned in the 4th Amendment. The draft of the Dobbs decision seems to me to confirm the idea of "privacy" rights in contraception, marriages, etc. So long as another "person" remains secure (which is NOT true for a fetus killed in abortion) the constitutional emanations and penumbras protect privacy as powerfully as people, via their state governments, allow.
ReplyDeleteThat said, we have the recent example in health care of our federal governments intentions, versus actual rules, under "HIPAA". The Health Insurance Portability and Accountability Act is the law that pretends to protect the people's privacy as patients. As far as I can tell, it does much the opposite. It puts a lot of very personal data into the hands of insurers, pharmacists, drug manufacturers, advertisers, news networks, spammers, and political action teams. HIPAA made everything worse. Just like so-called "Freedom of Information Act" laws have made it harder to get un-redacted copies of federal paperwork. It's a rare federal program that improves the situations it targeted.
Anyhow -- put privacy protections back into state hands and let's see what happens.
The contents of our Constitution—its text—are all that We the People ratified. If something is in a penumbral region, it is not in the text. If it is not in the text, it does not exist.
ReplyDeleteIn the particular case of Privacy, it was, IIRC, Griswold that conjured its existence. I don't think any Constitutional right was identified in Roe; Roe merely built on Griswold's manufacture.
It may be that a right to privacy is highly convenient to us, but if we want that, we have to have our elected representatives create it statutorily, or we have to, collectively and more stably, amend our Constitution to create it. Judges cannot without violating their oaths of office.
Eric Hines
Eric, what about the 9th amendment?
ReplyDelete"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Constitution itself says the people have rights that are not in the text of the Constitution.
The Constitution itself says the people have rights that are not in the text of the Constitution.
ReplyDeleteThe 10th Amendment says much the same thing in this context. It's tough, though--not possible, in my opinion--for a judge to divine what those unnamed rights are. Beyond that, the two Amendments aren't so much a catch-all so much as they're intended to make clear that what's enumerated in the rest of our Constitution are limits on Government, not an exhaustive enumeration of the rights we have. That was a concern of the Anti-Federalists--that what was identified in the pre-Bill of Rights Constitution was a total enumeration and not a limit on what Government was permitted.
On top of that, enumerating those unstated 9th and 10th Amendment rights is a political act, a law-making act. Article I, Section 1 is clear on where the authority to make law lies.
The other core document of our social compact acknowledges only the intrinsic rights to life, liberty, and the pursuit of happiness. Privacy, to pick the current example, is very useful for those, but not necessary. Indeed, we were getting along pretty well before Griswold, and with the limited government originally envisioned, and one largely hamstrung by the separation of powers before the FDR-stacked Supreme Court (and a few earlier 20th century rulings) began eroding that separation, government intrusion--the point of Griswold's privacy conjuring--wasn't much. It was the neighbor's nosiness that caused the trouble.
Do I have a 9th or 10th Amendment unenumerated right to peer into your bedroom window? No. We have laws against that kind of invasion of privacy. Laws--done by the political arms of our government, not done judge's rulings.
Eric Hines
It's tough, though--not possible, in my opinion--for a judge to divine what those unnamed rights are.
ReplyDeleteThat may well be true. I do not know enough to have a reasonable opinion on the matter.
... enumerating those unstated 9th and 10th Amendment rights is a political act, a law-making act.
Is it? I'm not sure. Where do you get that idea from?