American here. I think it's important to not characterize judicial review in the Row case as lawmaking. Although lots of anti-abortion advocates criticized Roe as legislating from the bench, the court was actually doing was checking the power of various state governments to take away individual rights. Judicial review has certainly been misused by the court in other cases to legislate, and the concept is anti-democratic to a problematic degree, but it is an important check on governments taking away individual liberties in the US constitutional system, at least in theory.
In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]
In cases where a majority doesn't have strong opinions, the US government doesn't really need to pay attention to the will of the voters. Politicians are rarely if ever punished for it. A similar dynamic played out with net neutrality during the last administration. Despite the public, including Republicans, being overwhelmingly for it, it was an issue they hardly cared about, and so the FCC was basically free to do whatever they wanted.
The other reason is that voters who are anti-abortion are not equally distributed amongst the population. Some, mostly smaller states are vehemently anti-abortion. As such, the senate would never muster the 60 votes needed to pass legislation protecting the right. Without Roe, for the last 50 years, we'd basically have been in the situation we're in now: legal in some states, illegal in others, with states fighting each other over whether or not residents can cross state lines to get an abortion.
> In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
I don't get it - this seems like sophistry. Isn't the end result the same, i.e. nationally permitting abortion?
> It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]
Isn't this how the system is designed to work? And if that's not desired, why not change the system instead? "The SCOTUS gets to make the rules" only works about half of the time, and it seems mostly like a matter of dumb luck as for when it does and doesn't.
Using the courts to enforce uncodified abortion rights is like using a shoe to beat a nail in; it's pointlessly brutal, and makes a mockery of the rule of law. I get that it may be expedient for a specific purpose, but why do people celebrate it as a good system in the abstract?
> Isn't this how the system is designed to work? And if that's not desired, why not change the system instead? "The SCOTUS gets to make the rules" only works about half of the time, and it seems mostly like a matter of dumb luck as for when it does and doesn't.
Yes, this is how the system is designed to work. It's a bad system, but the system cannot be fundamentally changed in an environment much short of political unanimity. The biggest changes to the system only came after a civil war.
No system is perfect. The founding fathers did as good a job as they could at the time, but no system can work well without fundamental rethinking forever. Unfortunately, the compromises (i.e. slavery) that lead to the constitution are no longer relevant, but we are left with a system that is difficult to change specifically to protect those compromises.
> Using the courts to enforce uncodified abortion rights is like using a shoe to beat a nail in; it's pointlessly brutal, and makes a mockery of the rule of law. I get that it may be expedient for a specific purpose, but why do people celebrate it as a good system in the abstract?
It's not a good system, and people don't celebrate it as such. Pretty much everyone recognizes that lifetime appointments of un-elected individuals to the supreme court has serious drawbacks. But it's the only way to preserve rights within the current system, and people would prefer that to another civil war.
> Yes, this is how the system is designed to work. It's a bad system, but the system cannot be fundamentally changed in an environment much short of political unanimity. The biggest changes to the system only came after a civil war.
> No system is perfect. The founding fathers did as good a job as they could at the time, but no system can work well without fundamental rethinking forever.
Why not rethink it, then?
I understand that there was a civil war before, but doesn't secession make way more sense now? If only the Democratic states participate, then the necessary consensus to make serious changes (e.g. European-style parliamentary democracy) would be much easier; the Republicans would maybe also tolerate it, given that it would allow them to introduce the laws that they wanted to.
How are you going to keep your country together with the way things are currently going?
I basically agree with everything dragonwriter said, but I'd like to add.
> How are you going to keep your country together with the way things are currently going?
I can't dismiss the possibility that this may come to another civil war, but it would be catastrophic. It's not just that war is bad. The world's largest superpower and nuclear power going to war with itself will end poorly for the entire world. If a civil war between somewhat equal forces breaks out, the sides will not restrain themselves. It's imperative that another civil war is prevented if at all possible.
Luckily, I don't think it's inevitable. As divided as we are, all sides still see themselves first and foremost as Americans. Even those who fly Confederate flags virtue signal all the time about how proud they are to be American. This is not Scotland or Catalonia, where there's a distinct national identity. Even those whose identities are wrapped up in the states in which they live still consider themselves foremost American.
And that's why, even though some may call to secede from Republican states, I don't think it will go anywhere. We have family and friends in those states. We don't want to abandon them to state governments that will treat them as inferior citizens based on race, sex, etc. It would be like Germany volunteering to be split into east and west following WWII.
Why would it need a civil war? It could be done peacefully.
Grant that people wouldn't want to abandon their friends (on both sides!), but surely nobody would feel it worthwhile to fight a war over people in other states having the right to vote?
It could not be done peacefully. Any secession in the US will result in civil war. The two possible exceptions to this are Hawaii and Texas, since both have somewhat legitimate, but still legally controversial, justifications for secession.
But depending on circumstances, it could be a quick, unbalanced war. The US has the largest, most powerful military in the world, and that's only possible because of the union of all 50 states. The military has a huge interest in keeping the union together, and no group of states can hope to stand up to its might.
Active-duty service members from seceding states will not be universally for secession, but you can guarantee nearly every service member from other states will be against it. Even among those who support it, a good number will follow orders to suppress it.
In such a scenario, the only defense seceding states have is the threat of nuclear warfare. The case for Scottish independence would be similarly dangerous if Scotland were not willing to abandon their nuclear weapons. US states seceding cannot do the same because they would be immediately conquered by the nuclear states.
Speaking of, if secession did succeed, we'd be left with 2 nuclear states antagonistic to each other sharing borders. It would be India-Pakistan, but with many, many more nukes. A bad situation all around.
But again, I don't think there's a popular case for secession. It's not like e.g. the people of California hate the people of Tennessee and no longer want to be in a political union with them. There is a lot of hated between political groups, but the borders of that hatred are not state borders. Liberal voters in California hate those running and supporting the government in Tennessee (and vice-versa), but they don't hate the liberal voters in Nashville, Tennessee's capital. The split is mostly urban-rural, not state vs. state.
It creates a situation where we may hate those living only a few km away, but sympathize with the plight of our fellow American thousands of km away. And again, a lot of those people are our friends and family. We don't want to just abandon them.
> surely nobody would feel it worthwhile to fight a war over people in other states having the right to vote?
The US civil war was fought in part by those who felt those being enslaved in other states was an injustice. Modern war is much more catastrophic, but starting civil wars for the rights of our fellow citizens in other states is an American tradition. For all the reasons I hope there won't be war, this is the one thing that makes me fearful another war might start.
> I understand that there was a civil war before, but doesn't secession make way more sense now?
No, it doesn't. The idea that basic human rights are of subordinate priority to sovereignty and something that we will just agree to disagree on has less currency now than in the 1860s; secession as a means of handling this kind of disagreement made much more sense then than now, and it didn't make a lot then, either.
So what's the strategy then? To be blunt, it doesn't seem to me like the US and human rights are going to have the best possible relationship in the next 10-20 years. Wouldn't it be better then to cut away from it?
> I don't get it - this seems like sophistry. Isn't the end result the same, i.e. nationally permitting abortion?
I'd argue whether or not this is sophistry depends on how you view rights. If you only have rights when the government grants you rights, then yes, this is sophistry.
Taking this to the extreme, however, one could main the claim that people are not allowed to do do innocuous actions like jumping jacks unless the government legislates that it's allowed.
However, if you instead take the more reasonable position that individuals have all rights except those curtailed by the government for the sake of maintaining a stable social contract, then it's not sophistry.
In Roe, the court ruled that the right to an abortion, within certain limitations, is not one of the rights that governments can curtail.
FWIW, most rights you and I have are not codified in the constitution. That doesn't mean those rights don't exist. This whole debacle is two SCOTUS arguing over whether privacy, and thus bodily autonomy, is one of those rights.
Ultimately the constitution is a, relative to the case law and interpretations the SCOTUS has generated from it, miniscule document.
I should read a bit more on this, but also wonder, what would be the problem with people deciding it is illegal in some states, and illegal in others?
Although I find it should be legal, within certain limits, what's holding people back from voting, or moving to another state which more closely matches their politician views?
Similar to the EU it is low friction to move state, right? When plenty of people apparently oppose abortion, why not let them..
> but also wonder, what would be the problem with people deciding it is illegal in some states, and illegal in others?
In practical terms, we're already seeing problems with state governments getting into beefs with one another. Some states which have outlawed abortion are attempting to make it a crime to go to another state to obtain one. California is running ads in Florida telling residents to move to California to preserve their rights, but California has a housing crisis so severe that people literally cannot afford to move to California.
Like imagine the issues that would come up if Poland was attempting to restrict freedom of movement of women traveling to Germany for an abortion, while Germany is running TV/radio ads in Poland encouraging people and businesses to move to Germany.
All these interstate arguments are supposed to be the domain of the federal government, but states which have outlawed abortion believe the supreme court will side with them and keep the federal government off their backs. Nobody is foolish enough to believe this decision is solely about the constitutionality of abortion bans. Conservative states recognize that the supreme court will now side with them no matter what.
But philosophically, the problem is that abortion (and privacy) is a fundamental human right, and these rights are being denied to Americans. The US is not the EU. We're not Ohioans and Texans and Californians like EU citizens are French, and Germans, and Poles. We are all Americans. We fought a war and then passed the 14th amendment partially on this basis. Individual rights for American should be available to all Americans, no matter what state they reside in.
> What's holding people back from voting, or moving to another state which more closely matches their politician views?
> Similar to the EU it is low friction to move state, right? When plenty of people apparently oppose abortion, why not let them..
It's not that simple for a number of reasons. The simplest is that minors aren't allowed to move on their own, barring certain exceptions, but they can get pregnant. Even after people reach the age of majority (18 in the US), because of the way our economy and health insurance systems evolved, people can be dependent on their parents for shelter and healthcare well into their mid-20s.
But the bigger problem is that the US is a very large but sparsely-populated country. in the most extreme example, Wyoming is a state the size of the UK, but has a population of less than 600,000. The states that outlaw abortion tend to be more sparsely populated, but still cover roughly half of the population, simply because there are so many of them. West coast states are also fairly sparsely populated, but partially because so much of the land is owned from the federal government, and the population centers are crowded near the coast.
If say, 20% of the total US population wanted to move from states that have outlawed abortion to states that haven't, that's a huge migration, and there isn't enough housing available. The US has been building less housing than we need for natural population growth since the 2008 crash.
And, to be fair, a small amount of that population growth in liberal states has been from people fleeing conservative states. But even in the most liberal states, so much of our economy is based around stable/rising real estate prices, which prevents building new housing at the rate that we need it. We're totally unprepared for citizens fleeing states where abortion is illegal.
EDIT: In case it wasn't obvious from the above, many people residing in states where abortion is now illegal cannot afford to move. It would be like asking the average citizen in rural Poland to move to Zurich.
> In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
That's a good distinction, but that distinction was not well-founded as a matter of jurisprudence, if my understanding of Alito's opinion in Dobbs is correct.
Roe had SCOTUS getting far over its interpretive skis, into societal matters that had a corrosive effect on the court, as witnessed by Sen. Ted Kennedy's character assassination of Robert Bork on the Senate floor some 15yrs after Roe.
> Roe had SCOTUS getting far over its interpretive skis
Roe had SCOTUS identifying privacy and therefore bodily autonomy as one of the un-enumerated rights which is still protected by the constitution.
Dobbs was the current SCOTUS saying "no, it's not an un-enumerated right" because it wasn't "commonly practiced in the founder's time".
Which isn't entirely true, there were some existing state laws on the books from the late 1700's which made abortion perfectly legal. But even if the majority had recognized that, they could have simply changed their examples to justify the change.
> In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
Correct, it did not pass a law, it made a ruling that read like legislation that struck down the laws of States passed by people’s elected representatives, i.e. the people selected to pass laws.
The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.
> The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.
This is arguably correct prior to the passage of the 14th amendment. However, Roe was decided on 14th amendment grounds. The 14th amendment provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…" This means that any state which does infringe on individual rights does conflict with the federal constitution, and therefore may be checked.
I'm not going to pretend that's not controversial. It came out of the civil war and was forced on a lot of states as part of reconstruction. We may have to fight another civil war over it, among other things, in the future. But the Supreme Court definitely has the power to check states when they curtail individual liberties.
1. The United States Constitution is the supreme law of the United States of America per the United States Constitution.
2. The 14th Amendment is part of the United States Constitution including the “privileges or immunities” clause.
3. Privileges or immunities is constrained by judicial jurisprudence post-Slaughter House which basically interprets it to mean that the States will not infringe on the privileges or immunities (not to be mistaken for privileges and immunities) that US citizens have as US citizens. You might be thinking the first 8 amendments of the Bill of Rights, but the joke would be on you because those were incorporated via the Due process clause.
Unfortunately nobody really knows what the privileges or immunities clause was for except as a worse reading of privileges and immunities per Article IV because this is a Civil War amendment, like the 13th and 15th, and unlike the founding era amendments (excluding the 11th), the Civil War amendments were written at a time when lawmakers were all feeling a little bit French and a little bit Fancy with their legal prose because this was now a post-Napoleonic Code world. Clarity and brevity were not the high points of this era of lawmaking, but at least we had mostly started to standardize spelling and grammar.
What it boils down to is you have the right to travel, including take up residency and citizenship in another State. If there is anything else it protects, the Supreme Court does not appear to have found it yet.
So when you say:
> But the Supreme Court definitely has the power to check states when they curtail individual liberties.
You’re not actually contradicting me because as you quoted:
>> The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.
This includes the US Constitution.
SCOTUS is governed chiefly by Article III, and here from Section 2:
> The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
That’s their basic jurisdiction. The Congress has established inferior courts, so SCOTUS typically acts as a final court of appeal rather than taking original jurisdiction over cases, but there are cases where they can take original jurisdiction (arguably must, but well that varies by Court era).
In other words, they take cases in law and equity according to the laws of the United States. Not one word in there is about “checking” or “balancing” State power except pursuant to the laws of the United States. If a State infringes on someone’s rights, it is not under the jurisdiction of SCOTUS unless it is also a violation of United States law. That is an important and very easy to miss distinction, but not irrelevant. We have a lot of laws with a lot of “rights” that Congress has passed per Article I, the Bill of Rights and also the 14th Amendment, but the important thing is they either have to be in the Constitution or in a law which Congress has passed in order for it to be a controversy which the Supreme Court or the inferior Federal courts could take jurisdiction over. Without a case to substantiate it, SCOTUS does not have wholesale power to “check” the States because “checking” power is not what they do: they arbitrate disputes and pass judgements in accordance of laws.
That's all correct. There's no precedent for the court using using the "privileges or immunities" clause as a rationale for jurisdiction, and Roe was decided on the due process clause. The privileges or immunities clause is indeed poorly written, and subject to lots of debate.
I should have quoted at least up to the due process clause, but omitted it for space. However, I still think there's a strong case that the due process provides jurisdiction for the court to "check" a state over abortion for the due process clause, and possibly the "privileges or immunities clause", though that's, as you pointed out, untested territory.
Post-Griswold, the due process clause applies to unenumerated rights in the constitution. Privacy, or even bodily autonomy, could easily be one of those rights.
Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty.
It wouldn't stand a chance with the current court, but I could see it flying on a modern court with a different makeup. After all, Corfield v. Coryell decided that New Jersey could prevent nonresidents from gathering clams. I can't see such state discriminatory laws passing muster post civil war.
> Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty.
The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.[1]
The context of the 14th amendment was that post-emancipation there were millions of freedmen who under the laws of the United States up until that point were of questionable legal status regarding citizenship and rights under the Constitution or the State they resided in. The 14th amendment was intended to try and settle that without leaving it to the Courts. I mean, you can read up on the history of the Jim Crow era to see how well that went specifically, but arguably even that could have been far worse without the 14th Amendment serving as something of a bulwark for freedmen.
So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause?
EDIT:[1] After posting I decided to dig this out, but I think a lot of people who quote the wonders of the mysteries of the 14th amendment’s due process and privilege or immunities clause forget this part, but there is a Section 5 and it reads as follows:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
This is not a delegation of power to the Courts. To the extent the Courts have additional power under the 14th, it is because Congress has additional powers to make new laws beyond the scope of Article I. When Congress’s power to pass laws is expanded, the Executive has the ability to enforce those laws and the Courts to adjudicate and pass judgement under those expanded laws. Congress is the supreme federal branch, and the powers of the Executive and Judiciary are downstream from there.
> The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.
Right, correct. However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. That's not true, the Court can enforce the due process clause even when there's no explicit federal law or enumerated right.
If this were not the case, Loving v. Virginia could not have been decided. The court ruled that the state law had violated both the equal protection and the due process clauses. Congress hadn't passed a law mandating that states allow interracial marriage, and it wasn't explicitly enumerated in the constitution.
The court ruled that
1. Marriage is a fundamental constitutional right
2. States depriving people of that right was unconstitutional
There's nothing stopping the court from using those exact same clauses to rule
1. Abortion prior to viability is a fundamental constitutional right
2. States depriving people of that right was unconstitutional
Of course, you could go all Andrew Jackson on it and say that the court has overstepped its bounds (though I'd disagree), but the court ultimately won. Given how vague a lot of the language we're talking about here is, history has shown repeatedly the court can essentially interpret it as strictly or as loosely as they want, as long as they can convince the rest of the country to go along with it.
> So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause?
Like I said, I don't think I should look to the privileges or immunities clause first, but I could definitely envision a much broader interpretation of what "privileges or immunities" are to cover any fundamental human right.
> “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Because this doesn't say "exclusive power", it the court has leeway to interpret itself into a role here. It may have been intended to be an exclusive power, but the court is very big on plain language.
> However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law.
Actually no. I think there are unenumerated rights: marriage, procreation, inheritance, paternal and maternal rights, and countless others.
Abortion is not one of them unless you are also arguing against the paternal interest of the Father and the life interest of fetus (mind I’m not going to say that begins at birth, I actually don’t have a strong position on that specific question at this time). That’s what makes it no longer simply a matter of privacy, or bodily autonomy or whatever substantive due process claim you could make; another human being is implicated.
That doesn’t mean we shouldn’t pass any legislation at all legalizing abortion to a point, but we have to make a political determination where that point is, and that will vary State to State, and it has to be legislation, not the Courts. That said I’ll give you this, if the courts want to step in at some point and protect the right to abortion in the cases of ectopic pregnancies, I’m all for it. I just hope they never have to.
In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]
In cases where a majority doesn't have strong opinions, the US government doesn't really need to pay attention to the will of the voters. Politicians are rarely if ever punished for it. A similar dynamic played out with net neutrality during the last administration. Despite the public, including Republicans, being overwhelmingly for it, it was an issue they hardly cared about, and so the FCC was basically free to do whatever they wanted.
The other reason is that voters who are anti-abortion are not equally distributed amongst the population. Some, mostly smaller states are vehemently anti-abortion. As such, the senate would never muster the 60 votes needed to pass legislation protecting the right. Without Roe, for the last 50 years, we'd basically have been in the situation we're in now: legal in some states, illegal in others, with states fighting each other over whether or not residents can cross state lines to get an abortion.
1: https://news.gallup.com/poll/1576/abortion.aspx