Comment by nabla9 | Hacker News Reader

Comment by nabla9 | Hacker News Reader

Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution. Roe vs Wade did not happen in vacuum, it's part of a larger understanding of the Constitution that recognizes a right to privacy and recognizes that there are unwritten rights[1].

This decision overturns this whole 50-year old framework. Decisions based on 14th Amendment’s Due Process clause are now open for banning contraception, banning interracial relationships, family relationships, right to intimacy (sodomy laws), the right to personal control of medical treatment. It will even have data collection limit consequences.

Some states are even more radical than current SCOTUS. They have sodomy laws considered invalid that can be activated. How Dismantling Roe Puts Interracial Marriage at Risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interr...

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[1]: The idea of unenumerated rights is clear and sound. The Ninth Amendment suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.”

Clarence Thomas' concurrence explicitly calls for these cases to be re-examined "For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell."

For reference: Obergefell allowed equal-marriage, Lawrence decriminalised sodomy, and Griswold decriminalised buying contraceptives.

Clarence Thomas said the quiet part out loud. He publicly challenged anyone to send them a case on gay marriage or birth control and they would happily oblige and overturn those rulings as well.

> How Dismantling Roe Puts Interracial Marriage at Risk...

Wouldn't the right of people to marry someone of any race be assured under the Equal Protection clause of the 14th Amendment?

https://en.wikipedia.org/wiki/Equal_Protection_Clause

Pace v. Alabama said equal protection was not sufficient. Perez v. Sharp and Loving v. Virginia require both equal protection and due process, the latter of which is now in question.

(It's all bullshit! The court will rule ideologically how they want, regardless of precedent.)

Pace v Alabama was from 1883. Perez v Sharp was a California case from 1948--an odd case to cite since it had no controlling authority outside of California.

Regardless, Loving v Virginia (1967) was decided by unanimous decision--and that's back in the 60's--just three years after the passage of the Civil Rights Act. I don't know of anyone seriously suggesting that the holding in Loving is in jeopardy today; it's literally the direct application of the 14th Amendment.

Pace v. Alabama rejected equal protection as justification. Perez, then later Loving, are relevant because they overturn that on the basis of due process as well - Perez being the first, Loving being the highest. You can't get Loving on equal protection alone; you certainly can't get Obergefell or Lawrence.

The parent asked why equal protection is not sufficient to protect interracial marriage. I answered. You don't like the answers, either:

a) Make a legal argument. To the extent you agree with this current decision, "it's old" lends it strength. But "it's old" isn't actually a legal argument, despite what the Supreme Court thinks. (That's how you know their purported theories of jurisprudence are bullshit.)

b) Make a real moral argument not rooted in made-up shit like textualism - and admit moral arguments for abortion rather than hiding behind "this is just jurisprudence."

"recognizes that there are unwritten rights."

Basically...legislating from the Bench. This has no place in constitutional jurisprudence.

That's Common Law 101 for you: rights are not "given", they are "discovered".

Pretty much as Newton's laws existed before Newton, the "rights" exist regardless of the laws (so is the philosophy underlying Common Law). The legislature can "discover" these laws, or — failing that — a judge can.

Well, those of us who believe in a textualist definition of the constitution believe the process for adding constitutional rights is a constitutional amendment and we control the court.

I'm not arguing with that, since any argument about "beliefs" is pointless. I'm just saying that "legislating from the Bench" is there by design. If you disagree with the design, it's fine — but this application "works as designed", even if you or me don't like the outcome.

The Continental law is based on another philosophy — you have no rights except the ones that are explicitly given to you by law, and the only way to have more rights passes through the legislature. There are many countries that employ Continental law, but the US is not one of them.

Common Law interpretation sure, you need to use the logic and decisions of the court to inform future decisions, but those decisions must be grounded on actual text and insofar as bad decisions are made they should be corrected. Should we have left all of the bad decisions on slavery and Jim Crow because of stare decisis?

> those decisions must be grounded on actual text

Uhm, no — “precedent” is a judicial decision which may not be grounded on any text whatsoever. It’s a common thing in Common law, and of course it doesn’t exist in Continental law.

which may not be grounded on any text whatsoever.

Well when your job is to interpret the constitution, it should be grounded on the text. That's why there are textualist who disagree with your interpretation of the role of the court. It is supposed to be the foundation.

From the dissenting opinion: Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights...When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

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This country couldn't pass a constitutional amendment making spam calls and email illegal. And didn't pass an equality amendment making women equal.

There is no prior example of a right being conferred and then taken away like this. That the Court now has a 25% approval rating following this past week, which rivals that of Congress, it is deeply delegitimizing to representative democracy that the minority keeps making the rules, and the majority keeps having to acquiesce, per the rules.

In Lincoln's 1st inaugural address he pointed out that in all constitutional disputes, either the majority or minority must acquiesce, or the government ceases. The majority can't be expected to suck it up all the time, it's just too obvious we don't have anything approximating a representative democracy so what's the incentive to acquiesce?

The court isn't in the business of conferring rights, in so far as they were "taken away" it just corrected horrible precedent.

You seem to ignore the 9th Amendment...

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

So if a right is not explicitly enumerated, it still exists and is retained by the people, NOT the States, the PEOPLE! A right to privacy, to control ones own body is fundamental to freedom.

Read the Thomas concurrence, lots more individual freedoms are going to be killed off by these theocratic fascists on the court.

From the decision:

"The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”"

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