Apropos of nothing…
(to be fair, it’s far from just America but shinning light and all that)
I never said this, nor intended it. It’s a strawman.
No “we” haven’t, and that’s not true. The right to not be forced to incriminate yourself is a clearly enumerated right explicitly written in the text of the Bill of Rights. “Privacy” is not mentioned anywhere in the text; it’s constructed as a right implied by the existence of other more specific definitions of rights. And while that’s fine in itself, asserting that these two things are exactly the same strikes me as an act of wishful thinking. They clearly aren’t.
Moreover, the problem with Roe is that privacy is such a broad concept that if universally treated as a constitutionally protected right - without any clear and at least fairly narrow legal definition - can be extended to apply to enormous swathes of public policy and be used to justify endless end-runs around the democratic process.
The right to an abortion
Self-defence as a constitutionally protected reason for owning firearms
Qualified immunity
Executive privilege
Gay marriage
These are a few things that immediately come to mind. On an ethical or policy level, the only one of them that I actually object to is widespread gun ownership. (Even qualified immunity, at least in some form, seems like a reasonable policy). But I also think that these policies should be debated and decided by the people and their elected representatives.
The SCOTUS has made many rulings that would not have happened had its members been constituted differently. So many things could have been found differently if different judges had been in position. Any talk of a SCOTUS ruling being absolute and truly representing the Constitution or even the will of the people is irrational.
It wasn’t long ago the Roe v Wade was seen as unassailable but all it took was a new court willing to hear arguments.
Nothing in this makes the decision not based on the 14th amendment. You not agreeing with it, or thinking it’s not as strong as Miranda or whatever does not change this plain simple fact.
Also as to your strawman accusation, I did say my phrasing was debatable, but…
We established this was false. Disagree?
This also false (though the parenthetical is spot on), no?
I’m glad you are here Thrag. I was just going to post a picture of a pig pooping on its own balls.
It was not made up of conservative Republicans, either. The Republican party had a large northeastern contingent that was generally elite, educated, and moderately liberal by Reagan-era standards (and certainly today’s).
But just being fair, it’s not totally irrational to see this as a kinda long reach, is it? The 14th Amendment doesn’t mention privacy. If you wanted to protect the right to an abortion or the general right to privacy in the constitution, you wouldn’t write it like the 14th amendment, clearly. There’s no doubt that it has been interpreted that way several times before and after Roe, so I’m not saying it invalidates the whole idea. Just that pointing to the 14th amendment on abortion isn’t a slam-dunk on the surface. I have a feeling even those who absolutely want the current rulings to stand aren’t exactly enamored of how they were constructed. Am I wrong?
Isn’t that something you can order in the south?
Yes, you can still order the Alabama Ortolan at some backwoods diners.
There actually was considerable debate about whether to include a Bill of Rights at all. Madison and others argued that any power not explicitly granted to the U.S. government by the text of the Constitution was reserved to the people anyway and didn’t need to be spelled out. They argued that including a Bill of Rights might lead some to imply that those were the only rights.
Here’s Federalist 84
[A] minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
I don’t think this is fair. There’s some validity to the idea that the politicization of abortion is due, at least in a significant part, to the fact that Roe was a landmark. Abortion wasn’t even really a big cultural issue in 1973. It was like marijuana in the 200x’s: public opinion had begun to shift toward reform of the most restrictive laws, a few states had passed laws loosening or abandoning restrictions, and many other states were considering legislation. It’s possible that if Roe had come a a decade later, after public support had swung more broadly, it might be approximately as contentious as Obergefell is today (i.e. not particularly.)
(oops, got my attribution mixed up initially)
This is what I was responding to.
The “winning” side in Roe vs Wade did not achieve their win by intentionally packing the court with political hacks. They didn’t do it by refusing to allow a president to nominate someone to the supreme court. The GOP is not replicating tactics used by the “winners”.
I addresed this.
Well I didn’t make the original post, but that’s not a fair quote. You’ve elided the end of it and strawmanned the rest. Here’s what he actually said:
It’s definitely the case that unelected and unaccountable judges decided the case. I sort of take issue with the nitty gritty of the rest of the statement: the right to privacy wasn’t discovered in the Roe opinion. The opinion itself references nearly a century of jurisprudence that establishes that right. And “bypass democratic process” is trivially true, but the Court and judicial review have been features of American political life since its inception, so this “use” of the Court didn’t spring up out of nowhere. That said, the broader point that Roe probably contributed to political polarization over the topic over against letting it percolate in state legislatures for a bit longer is a legitimate (though debatable) point.
Okay, but you interperation ignores the entire first half of the quote which is the premise. Yes, supreme court justices are unelected. No, the GOP did not copy the tactics of the winners
The tactics used by the “winners” in Roe vs Wade:
Find a compelling case to bring to the courts and fund a strong legal team to do it.
The tactics used by the GOP today:
Make an organized effort over decades to appoint ideologues on the issue to the bench knowing how they will likely decide. People groomed by an literal organization for the purpose. Obstruct a Democratic president’s ability to name a justice while ramming through your own nominations. Get a case to the court to decide.
They are not the same picture even if they both include “get a case in front of the supreme court”.
LOL. I am glad to have spared everyone that.
I will have to note I posted the entire quote the first time I posted it, and only requoted the operative portion for brevity.
I strawmanned nothing. We can look at the full quote again.
The side that lost that fight 50 years ago are simply replicating the tactics of the winners; get the unelected and unaccountable judges to re-interpret the constitution and bypass all democratic process.
This is an absurdity supported by a logical fallacy. I’ve already covered how the tactics are not the same. Yes, they pointed out one aspect of similarity but it is a logical fallacy to consider one aspect of something to make things the same. He did not say things are similar in this one small and mainly unavoidable way. The quote is again “replicating the tactics”. Not “playing on the same field”. “Replicating the tactics”. Tactics, plural.
This is like saying American football replicates the tactics of European football because they both involve getting a ball into a certain area at the end of a field.
Pin this post, because it is correct.
Apologies for the self-indulgent self-quote, but I’m still kind of stuck on this idea.
Democratic constitutional governance in the modern world is a bit like waking up one morning in a zombie apocalypse. And, like, what you have to help you survive is just what’s in your garage. There are a bunch of well-engineered machines in there–a lawnmower, a weed whacker, maybe a Maserati–and those things can cut a zombie in half when they need to. Some require a bit more imagination than others; none are quite built for the job.
I wish everyone on all sides of contentious constitutional issues would be honest about this fact, because when they’re not they act like the answer they want is obviously there in the constitution and its historical interpretations, and the ones they don’t want are obviously not there. Let’s at least start by admitting the 14th amendment is a lawn mower of abortion jurisprudence or the 2nd amendment is about as good as a weed whacker in supporting personal carrying of firearms, or whatever. Or maybe we can debate if one is a Maserati. I think it makes a difference to how we argue since it’s so tempting because of the nature of the constitution to take an almost scriptural approach when it comes to the issues we want it to endorse, but hermeneutically speaking it’s rarely that simple.