> 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.
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”.