The Roe Countdown

[Meadmaker]

A better foundation is a well reasoned argument based on laws, the Constitution, and what is fair and just. An argument that does not rely on religious belief, especially when the Constitution forbids it*.

Ok. We'll start with this.

The first two items sound a lot like textualism to me, but perhaps there is some difference than can be explained.

If we go with the second two items, "fair and just", we have no problem as long as the law and Constitution are fair and just, so are we allowing the Supreme Court to overturn laws if those laws are not fair and just? I hear an awful lot of arguments among people about exactly what is fair and just. What is it about those 9 people that makes them able to determine fairness or justice better than you or I could make that determination? They are much better at understanding the law and the Constitution, because they've studied it and they have staff to help them through the finer points, but when it comes to fairness and justice, it sure seems to me like there's a lot of opinion and values built into that. When it comes to fairness and justice, Justice Blackmun had one opinion. Justice Alito has another. I can't see an objective standard by which I can judge who is more fair and more just.


However, let's try and apply that to abortion. The law, the constitution, fairness, and justice.

Law: Mississippi has a law that says it's illegal. That one's pretty straightforward.

Constitution: Scans......hmmm...nothing obvious. I had better check the penumbras and emanations. Well, maybe. There's this thing called "substantive due process", which is not named explicitly in the Constitution, but has guided opinions for a century. Basically, it says if it's none of the government's business, the government can't keep you from doing it.

Abortion is none of the government's business. QED. Right?

Well, I actually buy into that idea to a large extent, but let's play devil's advocate for just a moment. Is it ever the government's business?

What about if a woman is in labor, and it's "normal". The baby is healthy. The mother is in pain, but otherwise healthy. It's the 21st century and within an hour there will be two legally recognized people, both breathing normally. Could the woman decide to have an abortion, killing the baby, right there?

I think we would all say no. (I've heard people say yes to that question, but I'm confident they only say that because they know where this is headed.)

So...when? When does the government gain a legitimate interest in keeping that thing alive? Some suggestions I have heard have been the onset of labor, viability without artificial life support, viability with extreme life support (i.e. intensive neo-natal care), fetal heartbeat detection, ability to feel pain, implantation in the uterus, and conception.

In order to make a law that says you can kill it at some point, but not at others, you have to draw that line somewhere.
<snipping earlier lengthy explaination, I'll get back if interested>

It's my understanding of the theory of the separation of powers that the legislative branch makes that decision.

 

[Bob001]

I thought "fair and just" was common sense - but I might be biased.

Well, what do "fair" and "just" mean?

 

[Upchurch]

Ok. We'll start with this.

The first two items sound a lot like textualism to me, but perhaps there is some difference than can be explained.

Maybe you could start by explaining how they are, in any way, the same. What definition of textualism are you using, here?

 

[The Atheist]

OMG, ROFL and many other acronyms!

I've never watched a country reverse the clock like America is doing right now.

The next step is to have a federal, outright ban on abortion. Mitch McConnell has your back!

https://www.huffpost.com/entry/mitc...ossible-roe-v-wade_n_62772e80e4b0b7c8f0851155

 

[Upchurch]

OMG, ROFL and many other acronyms!

I've never watched a country reverse the clock like America is doing right now.

The next step is to have a federal, outright ban on abortion. Mitch McConnell has your back!

https://www.huffpost.com/entry/mitc...ossible-roe-v-wade_n_62772e80e4b0b7c8f0851155

They'll have women back in the kitchen where they belong before you know it!

 

[cosmicaug]

They'll have women back in the kitchen where they belong before you know it!

Beware! A man having to occasionally make their own sandwich is part and parcel of sort of dystopia liberals want!

 

[Meadmaker]

Maybe you could start by explaining how they are, in any way, the same. What definition of textualism are you using, here?

It's a predictable response, which is to say no response at all.

I get it. The kinds of questions I was asking and issues I was raising aren't very interesting to you. That's understandable. They aren't very interesting to most people What most people care about is the bottom line.



Anyway, to answer your question, the first two items you referred to were "the law and the Constitution". Those things exist as text. If you are relying on them, you are relying on the text.

 

[Meadmaker]

OMG, ROFL and many other acronyms!

I've never watched a country reverse the clock like America is doing right now.

The next step is to have a federal, outright ban on abortion. Mitch McConnell has your back!

https://www.huffpost.com/entry/mitc...ossible-roe-v-wade_n_62772e80e4b0b7c8f0851155

We'll see. It has been a long time since abortion was a front burner issue for anyone except conservative Republicans. I think it is now a front burner issue for everyone who cares about abortion. I think we have to see where it goes after an election. If there's strong gains by politicians who are openly anti-abortion, then I'll say that America is turning back the clock. Unitl then, I think it's a victory for people who were trying to get a win while travelling under the radar.

They're exposed now. My prediction is that a lot of Democratic elected officials are breathing a sigh of relief, because now they are on the right side of a popular issue.


However, I say that's my prediction, but it's not a prediction that I am confident in. A lot can happen in an election year, and Democrats have a lot of ground to make up.

 

[mumblethrax]

So, we've seen putdowns of "originalism" and of "textualism" when it comes to constitutional interpretation.

What's an alternative?

The standard alternative is "living constitutionalism".

But personally, I think the best alternative is constitutional heresy--we should ignore the constitution. It has no democratic legitimacy, effects undemocratic institutions, and has generally worked against what people imagine it protects. The constitution is an ass.

https://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

 

[Meadmaker]

The standard alternative is "living constitutionalism".

But personally, I think the best alternative is constitutional heresy--we should ignore the constitution.

I think "living constitutionalism" pretty much already does that.

I also think that's a great recipe for tyranny of the majority.

 

[Meadmaker]

The standard alternative is "living constitutionalism".

But personally, I think the best alternative is constitutional heresy--we should ignore the constitution. It has no democratic legitimacy, effects undemocratic institutions, and has generally worked against what people imagine it protects. The constitution is an ass.

https://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html

I'll add that if you ignore the constitution, there never would have been a Roe v. Wade. Judicial review doesn't make sense if you ignore the Constitution. It would have been in the hands of the legislature all along.

 

[mumblethrax]

I think "living constitutionalism" pretty much already does that.

It doesn't, unfortunately.

I also think that's a great recipe for tyranny of the majority.

To give up the constitution is not to give up on traditions of respect for political minorities. Other countries manage it without the pretense that these traditions emerge from holy scripture.

But the overwrought fears of tyranny of the majority ignore what has historically been the case in the US--tyranny of the minority. Or, worse, tyranny of an 18th century micro-minority.

I'll add that if you ignore the constitution, there never would have been a Roe v. Wade. Judicial review doesn't make sense if you ignore the Constitution. It would have been in the hands of the legislature all along.

Judicial review, as has already been noted, is a power that the court seized for itself, and not explicitly granted by the constitution. But you can have a super-legislature with or without a constitution, so this just isn't true. We did not abandon all of the case law of the past when we authored our first or our second constitutions.

Personally, I don't see why abortion shouldn't be subject to democratic adjudication. It's just that the US has no means of doing so, due to the lack of genuinely democratic institutions or any provision for national referenda.

 

[Upchurch]

It's a predictable response, which is to say no response at all.

I get it. The kinds of questions I was asking and issues I was raising aren't very interesting to you. That's understandable. They aren't very interesting to most people What most people care about is the bottom line.

Anyway, to answer your question, the first two items you referred to were "the law and the Constitution". Those things exist as text. If you are relying on them, you are relying on the text.

Ah. I asked because I had to look up the term textualism...

Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear.

...which wasn't what I was suggesting at all. That's why I was asking what the heck you meant because it just didn't make sense to me. I still don't think you mean "textualism", given your explanation.

So, to answer your question, it's very different from textualism in that I care very little about how people understood the terms at the time they were ratified.

 

[Meadmaker]

Ah. I asked because I had to look up the term textualism...

​

...which wasn't what I was suggesting at all. That's why I was asking what the heck you meant because it just didn't make sense to me. I still don't think you mean "textualism", given your explanation.

So, to answer your question, it's very different from textualism in that I care very little about how people understood the terms at the time they were ratified.

That wasn't a question I asked.

 

[Cain]

I think "living constitutionalism" pretty much already does that.

One argument for the-Constitution-as-a-living-document is that it's a true form of originalism: The Constitution was intended to adapt and change. Jefferson: "The Constitution is for the living, not the dead." The Articles of Confederation are much more consistent with the "Spirit of '76," but in less than a decade that "perpetual union" was dissolved (by means that were unconstitutional/illegal). Hell, after the new constitution was adopted, ten amendments were added almost immediately, then another two. This form of government lasted about as long as the Soviet Union when it descended into the worst bloodshed of the 19th century -- which gave "a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."

I also think that's a great recipe for tyranny of the majority.

There's a Russian saying that the best form of government is the good czar and the worst form of government is the bad czar. One of the virtues of democratic governance is that it has mechanisms for self-correction. Just as WWII would put a soft glow on militarism, the relatively liberal post-WWII court put a soft glow on judicial review/the good czar. The federal government, contrary to what the framers intended and imagined, had become the protector of rights against state and local tyrannies. The Court nationalized the Bill of the Rights. You don't have real First Amendment, Fourth Amendment, Sixth Amendment etc. rights without those Justices reading things into the Constitution -- ironically strengthening respect and awe for a document most Americans have probably never read (much less understood). Castles built on sand.

What's the alternative? France has a supreme court, but as far as I know, it issues advisory opinions (kind of like the UN's General Assembly). If the court is respected, it can inform/move public opinion.

 

[Meadmaker]

One argument for the-Constitution-as-a-living-document is that it's a true form of originalism: The Constitution was intended to adapt and change.

And the means to adapt and change are specified in the document itself.


And I agree that interpretation can play a role in that, but if you stretch it too far, it no longer works. I look at the role courts, especially the Supreme Court, have played in adapting the Constitution to deal with novel situations that did not exist at the time it was written, I don't see any problem with what they've done in most cases.

When I think of the Constitution as a "living document", I don't have a problem with that, in principle. The authors didn't envision a world where a war could be started, and ended, in thirty minutes. They didn't foresee a world where all commerce is interstate commerce. They didn't foresee a world where a healthy young couple could have sex, but be extremely, though not perfectly, confident that no conception would occur, or where conception could take place outside the woman's body.

The principles in the Constitution have to be adapted to modern circumstances. However, some people think of "living document" to mean, "We can ignore what it says if we don't think it applies anymore." That's where I draw the line. It is "living" if that is allowed, but it is no longer a "document". There must be some constraint on judicial review, otherwise the court becomes a super-legislature, unelected, unrecallable, and not subject to veto. Shall we start impeaching judges if we don't like their opinion? It has been suggested, but most people don't find that to be a very good idea.

 

[Upchurch]

That wasn't a question I asked.

I just assumed you'd want to address the false premise.

 

[Meadmaker]

I just assumed you'd want to address the false premise.

I just assumed you would ignore any question you found inconvenient, and I was right.


There's a lot of confusion between textualism and originalism. The words of the law or Constitution have meaning, but, as noted in my last post, there are situations that the framers could not have foreseen. Even more significantly, there are things that are implied by the words of the Constitution, but which were not actually intended by the framers who wrote the laws. In those cases, an originalist would say, "Hold on. They didn't mean that, so we don't have to do what they said." A textualist would say, "I don't care what they intended. Here's what they said, and that's what we're going to do." The only place where the original meaning comes in is that if a word's meaning has drifted over time, the definition of an original phrase should be the one used by those who wrote the sentences that are being interpreted.

I doubt that anyone is a purist on either side. I would count myself much closer to a textualist, but I would say that the concept of substantive due process is implied by the words that they wrote. As such, I support a whole raft of interpretations that depend on substantive due process, even though the framers didn't intend them. An originalist would disagree.

And a living constitutionalist? I have no idea what they would say because I can't understand how they would place any constraints at all on the Supreme Court. It seems to me that they would have to accept any and all rulings of the Supreme Court, because regardless of what the High Nine said, that was the "living" part.

 

[theprestige]

There is always the obvious remedy of replacing old words with new ones, when the old ones no longer suffice. It's not necessary to insist that we hew to the old words, but with whatever new meaning you insist they must have and be binding on us all.

 

[Segnosaur]

"bear arms" means carry, not own.
It's 100% originalist interpretation to say that all guns must be owned by the Community and stored in the local Armory.

I think there is a better explanation of what is meant by "bear arms" in the 2nd amendment...