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Comment by HideousKojima | Hacker News Reader

In Thomas's mind, one has long-standing historical precedence where the other doesn't.

Interracial marriage has existed for pretty much all of human history (though race as a concept likely didn't, at least not the way it is perceived in modern times). Heck you even have Moses marrying an Ethiopian woman and his siblings spoke out against him over it and were punished by God for it (see Numbers chapter 12).

Gay marriage, on the other hand, has near zero historical precedence outside of a few cases with Roman emperors and stuff like that.

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Abortion also has a deep historical precedent. People have been doing them for at least a thousand years.

Gay marriage has existed for as long as marriage has, it’s just best documented when it involves emperors.

https://en.m.wikipedia.org/wiki/Timeline_of_same-sex_marriag...

But you know what doesn’t have a long historical precedence? Automatic weapons, or protecting money as speech.

Money has been used for speech since the invention of money.

I’ll grant you automatic weapons though

Semi automatic

The "it wasn't invented at the time they wrote the Constitution, so the Constitution doesn't apply to it" argument has been debunked long ago. Otherwise, freedom of speech would only apply to parchment and quill pens. The whole point of a court is to interpret the Constitution with new facts and situations that arise.

Originalism was rejected by the court for the longest time, but we have since appointed new judges to the court who don't reject those arguments. They used originalist arguments to overturn the NYC gun ban yesterday.

"The whole point of a court is to interpret the Constitution with new facts and situations that arise."

You're describing the "living constitution"[1] view, which has not been the dominant position among Supreme Court justices for some time.

Now they're all "strict constructionists"[2], who think the opposite of what you describe: that the constitution should be interpreted just as it was written.

[1] - https://en.wikipedia.org/wiki/Living_Constitution

[2] - https://en.wikipedia.org/wiki/Strict_constructionism

Just to be clear, no SCOTUS case has yet stated that citizens are entitled to own fully automatic firearms, and it seems to me exceedingly unlikely that they would. Heller talks about how to decide what kinds of firearms can be prohibited, and strongly indicates that you can't ban 9mm handguns because they are the most popular firearm for self-defense and so on. It's hard to see how one can extend Heller and this case to say that you cannot prohibit fully automatic firearms.

The constitution was written in 1787. Guns were all muzzle loaded at that time. The automatic/semi-automatic distinction is meaningless to the constitution. Why would it draw a line at automatic and not at post 1820 percussion cap weapons?

> Abortion also has a deep historical precedent.

It has, but not as a right. The Hippocratic oath specifically bans it:

> Similarly I will not give to a woman a pessary to cause abortion.

— Hippocratic Oath (AD 275, or earlier)

Ignoring the fact that originalism as practiced is an embarrassing judicial philosophy,

> Interracial marriage has existed for pretty much all of human history

is not the answer to the question originalism is asking. It asks whether there is a historical precedence for protecting that action as a right.

You don't need to look any farther than this very ruling! Abortion has been practiced since the beginning recorded history (and likely much longer) and books like the bible even instruct you on how to perform one. That history has no bearing on Alito or Thomas.

>books like the bible even instruct you on how to perform one

Not really, that depends on which translation of Numbers 5 you're looking at. It's not clear at all that the "Ordeal of Bitter Water" was supposed to induce a miscarriage.

If GP is in fact referring to the sotah, then it would contradict their argument even more because it is explicitly the husband having power over the woman's body without needing her consent or even any justifying evidence. https://en.wikipedia.org/wiki/Ordeal_of_the_bitter_water

> then it would contradict their argument

to be clear, its pretty irrelevant to the argument because the bible is just one such example of the history of abortion. There are hundreds more and if it would help you can pretend I mentioned one of those instead.

Slavery has historical precedence. Wtf does that matter?

Well... we actually have a constitutional amendment directly banning slavery, and no such amendment for interracial marriages which are never mentioned constitutionally. It's easy to resolve from a purely constitutional perspective.

From a purely judicial perspective, slavery is explicitly abolished in the US Constitution, via amendment.

The approach that Thomas favors is "text, history, and tradition". The words - as written - taken in light of what the author(s) intended and what was happening at the time.

Except for prisons

If you want to get really technical, except as punishment for a crime.

As best I can tell it would be entirely legal for the US government to sell someone sentenced to life in prison to a private party.

The approach that Thomas (and the court majority) favors is “do whatever I personally want, then hunt for a justification, however tortured.”

With modern medical knowledge, abortion is safe. Does that make an unwanted pregnancy forced labor?

https://www.thenation.com/article/society/abortion-ethics-ge...

> In Thomas's mind, one has long-standing historical precedence where the other doesn't.

That would be an anomaly in setting judicial precedent. If legal precedent was formally acknowledged for historical reasons, then we would be having a really long conversation on civil rights, _all_ civil rights.

And the issue may not be gay marriage, but straight up sodomy laws, which were introduced as religious inspired laws, most extensively Judeo-Christian. For these to stand, we would need to ignore the separation of church and state.

Speaking of sodomy laws, that is exactly the conversation that is unfolding right now:

  "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell,"

This is from Justice Clarence Thomas. Lawrence v. Texas if you recall was the Supreme Court decision that struck down sodomy laws.

Abortion has existed for pretty much all of human history, too.

And laws against abortion have existed for most of human history as well. Most haven't been outright bans on it, but there have been plenty of rules about who can get them and how all the way back to Hammurabi.

> Most haven't been outright bans on it, but there have been plenty of rules about who can get them and how all the way back to Hammurabi.

This sounds like it needs a source.

As far as I understand, anti-abortion laws started getting traction in the 1800s. Before that, these were scattered and mostly religious inspired. Also, Hammurabi doesn't make any references to voluntary abortions.

>> As far as I understand, anti-abortion laws started getting traction in the 1800s. Before that, these were scattered and mostly religious inspired.

The court found otherwise, you can read the majority's evidence in their opinion at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf starting on page 17:

"The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U. S. ___, ___ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” 2 DeLegibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–61 (H. Richardson & G. Sayles eds. 1955) (13th-century treatise)."

They go on for a few pages going over common law before discussing the historical record in the US.

Lawrence is a sodomy case. Can't tell me people just figured that out in the past 50 years.

And laws against sodomy have... you guessed it... long-standing historical precedence. Though in the case of sodomy laws banning it aren't as historically universal as the practice of interracial marriage was.

> Gay marriage, on the other hand, has near zero historical precedence outside of a few cases with Roman emperors and stuff like that.

Unsure if you're presenting that as the human history that exists "in Thomas's mind" or actual history

Loving v. Virginia was decided in 1967.

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