Defying the Supreme Court
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The supreme court has recently reversed and stated "we were wrong, we didn't have the right to enforce our (the courts) will on X topic, it belongs to the people."
How in the world is it 'defying the court' when the court took away its own power and suggested that legislatures legislate - which they are doing.
The hyperbole is off the charts.
"It's your hair so it's up to you son."
"Defying my Dad by dyeing my hair blue."
Basically the same psychology.
Consider this scenario. A woman in Texas goes to New Mexico and gets an abortion. The doctor that performs the abortion later decides to fly to Tennessee. The first leg of the trip involves a layover in Houston. Can the doctor get arrested for murder in Houston? Will people have to be careful where they travel now?
What the Court did was take away a right that women have had for over 50 years. What they did is to say that states are free to take away a right. This is an astounding action by the Court. The access to a healthcare procedure will now be at the whim of state or federal legislatures? When talking about the legal ramifications of the Courts decision it is hard to speak hyperbolically. One member of the Court openly said the right to have consensual sex, the right to birth control, and the right to marry freely should be overturned.
In that vein, I disagree with a few points you stated.
We, in the US, are a nation of states. It has always been the case that laws differ from state to state. Consider a legal gun owner in one state that does business in another - if he keeps his weapon on him in a restricted state, he will be jailed and possibly face prison. This fact - that we are a collection of states - was an important consideration to the forming of the united states as a whole. I would argue that the increasing federalization of laws is likely the opposite of historic norms in the united states.
I know this does not help if you feel strongly about this - and many do. In this ruling, which has impacted so many, the court did not take away a right. The court stated that it had taken away the power of the people and created a law where none existed.
If we, the people, dislike this then we petition our government to change the laws. . . and we start in our state. Today - literally today - I can call up my state reps office and schedule a lunch or a chat with her. I have, in the past, done just that.
If the current laws bother you, and I think they do, then you should absolutely do the same. Look - its one of the great parts of America.
I hope you have a good day man.
Euclidean geometry is a vast subject with many theorems. Those theorems are logical consequences of the 5 axioms of Euclidean geometry. Just 5 statements are the basis for a large number of logical consequences. Imagine then how many logical consequences are possible from the many statements of the U.S. Constitution.
There is no explicit right to an abortion stated in the U.S. Constitution but courts 50 years ago said that this healthcare procedure can’t be completely outlawed. They enshrined it as a right. It has been a right for 50 years. Now it is not. I talked with a conservative justice on a state Supreme Court many years ago. He told me that the legal basis for Roe had slowly been established by precedents over the years. He did not say whether or not he agreed with those precedents. I’m just pointing out that the expansion of the rights of women to an abortion was not without a well reasoned path. Sort like how after enough theorems one can see that then sum of the degrees of a triangle is 180 degrees.
There have been historical variations in laws between states. Slavery is the quintessential example of this and it led to the Civil War. If there is too much variation on the legal protections between the states this can lead to chaos. The Court should be in the business to equalizing rights across the nation and not diminishing them. The Court is in the process of trying to equalize the rights to guns across the nation. While I oppose the interpretation of the 2nd Amendment most people have it should be equalized across the nation. This is particularly true since travel is so much easier now than in the past.
We will soon live in a country where an act is legal in one city and a death penalty offense in another. The last time that happened we ended up in a civil war. I don’t believe we will end up with a civil war over abortion but I can see liberal states telling Texas to go ahead an secede when Texas declares their right to do so (as they have done at various times over the past 40 years).
The Court’s action is extremely divisive and I don’t think state legislatures should have to right to limit medical procedures. Let’s assume we both agree that at conception the embryo is a human being with all the accompanying rights. I don’t think state legislatures should able to force a person to risk their life to save that embryo. Should legislatures have to the right to force me to donate blood to someone or donate a kidney to save someone? I think not. Legislatures should not have the right to force women to risk their lives to save an unborn child.
We disagree strongly on this issue. We disagree on the role of the Court. There are major power imbalances with regard to the power distribution among the states. These structural problems are coming to the fore due to results like overturning abortion. Such is my view.
I hope you have a good day too. I will read any response you make but won’t respond further. I doubt you will convince me my position is wrong and I doubt I’ll convince you but it is fruitful to read other peoples’ opinions.
The Courts are the nuclear option in our System, and disturbingly, people have been looking more and more to them as the way to get things their way in the abscence of a non-assenting populace. I fear that our common law system may have too much to it to be reasonably refactored without some serious innovation in the space of jurisprudence, or to be accepted without giving widespread access to every last citation and point of historical fact that weighs into one particular decision or another by the Court.
The crows must come home to roost in the Justice System at some point. If we can't agree on the facts at the Federal level, we've got bigger issues, and we've got a tragic contention for having historically factual evidence honored for acts of the judiciary, and the need for a judiciary that can collate and parse those facts fast enough to make decisions within a reasonable timeframe without Yoloing it. Trying to do that though, increasingly feels to me like work more appropriately done by the legislature.
Perhaps there needs to be a sort of link between the legislative and judiciary as far as facilities for research? Both seem to be in dire need of the same thing.
This ignores the fact that the previous status quo was that not that the court had taken away the power, but that the court had recognized that a inalienable right existed based on the 14th amendment, and as such was not something that the states had power to legislate. This is not the creation of a law, but an interpretation of it. See Roe at p33 [1]
Given that we as a society have for 50 years believed that we had such an INALIENABLE right, that a court of any regard can take such a right away is pure nonsense.
I guess the easiest question to ask of you is do you "OrangeMonkey" believe in an inalienable right to privacy, whether it's enumerated explicitly or not in the constitution. Because this all falls on that singular point regardless of the outcome on Roe / Dobbs. As a male, Dobbs doesn't directly affect me in its impact of whether I can have an abortion. But it affects my understanding of what the state can or cannot do with respect to my private actions. See Roe at para 77 [2] and especially para 117 [3].:
In the words of Mr. Justice Frankfurter, Great concepts like . . . 'liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.
[1]: Roe v Wade. para 33. https://www.law.cornell.edu/supremecourt/text/410/113#p33
[2]: Roe v Wade. para 77. https://www.law.cornell.edu/supremecourt/text/410/113#p77
[3]: Roe v Wade. para 114. https://www.law.cornell.edu/supremecourt/text/410/113#p117
It seems pretty clear to me that in your scenario Texas wouldn't have jurisdiction over anything that happens outside its border. I'm certainly not a lawyer though and would be interested to hear if there is any precedent that says otherwise.
But this just isn't how it works, right? "Claiming" jurisdiction I mean. Take your previous example but instead imagine the woman from Texas took a trip with her husband to New Mexico and paid a hitman to murder him during the trip. The suspected hitman would most certainly be arrested on a layover in Texas (or any other state) but that state wouldn't have jurisdiction to prosecute for a murder that happened in New Mexico. The suspect would instead be extradited to New Mexico to face charges there.
> Would you be willing to risk arrest if you were a doctor in New Mexico and a Texas resident comes to you for an abortion? Even the threat of arrest has consequences on peoples’ actions.
I certainly agree there and definitely cannot speak to the risk assessment that abortion providers might unfortunately be contending with but I can't imagine that this will remain a question for long. Federal courts definitely do not like legal ambiguities between states.
Only because the two states have the same law regarding murder.
More comparable would be the prosecution of internationally-travelled kiddy-diddlers. Though the laws in the foreign country may have allowed such behaviour, itis illegal in the US and the prosecution will be in the US. The diddler is not extradited to the permissive country.
>But this just isn't how it works, right? "Claiming" jurisdiction I mean.
yes, that's exactly what might happen.
https://www.npr.org/2022/07/15/1111383520/texas-abortion-law...
States enforce laws across state lines all the time, doing so for abortion - now considered a crime - would be no different. Several states, including Texas, have or are attempting to pass laws making it illegal to cross state lines to obtain an abortion. South Carolina is banning websites which describe how to get an abortion. So this affects not only freedom of travel, but freedom of speech.
In both of your examples, the states are controlling the behavior of people in those states. Texas is controlling people in its state (and leaving). South Carolina would be banning things brought into its state (information). I think both of these examples, if they are as plainly stated as you mentioned, are illegal for different reasons (interstate commerce clause) but I wouldn't think this is an example of states policing actions that happened in other states.
I don't know much about laws on that topic, but it seems to be a similar case to me.
* If you buy something legal in one state
* and you then travel to another state (where its illegal) with that item
* then you have broken the law and can go to jail.
Its not the doing something in state-a and then traveling to state-b. Its the traveling to state-b with something illegal in state-b.
Does that make more sense?
Federally, marijuana transport across state lines is still trafficking in illegal narcotics. That the States don't help enforce it doesn't change a thing.
Not a lawyer, just read books, mind.
Thereby, my most pessimum view would be if you run an abortion clinic, it may well behoove you to not take certain routes if you'd like to avoid being a test case for interstate judicial proceedings until the Federal legislature sorts things out, or a Constitutional Amendment is ratified by 2/3 of the States. It blows, but that's Government of, by, and for the People.
Absolutely nothing says the People's definition of reasonable is going to mesh with any one person's.
Not a lawyer, just read books, mind.
At some point, our system has started to look more like a system mutated through jurisprudence, rather than through sane collective action via legislation, which seems to be held up by the political machinations of special interest groups/the two main political parties, and less accessible/approachable by most constituents apparently; which leaves these types of judiciary precedent golf games to be the seemingly more accessible form of legal landscape change.
We're looking more like a country ruled by judges than by anything resembling some sort of sense in terms of how we architected the Government.
I'm not even sure I could pinpoint where the specific hangup is, or suggest a reasonable change without several years to really absorb the structural aspects of the system, and painstakingly listing out the inputs/outputs.
The Supreme Court ruled that they were wrong and are now allowing Gov actors at the State level to control a right previously held by people.
He says that the us house has already passed a same sex marriage act, but I don't think he understands what the bill does. Read it here:
https://www.congress.gov/bill/117th-congress/house-bill/8404...
My take is that it cancels DOMA (defense of marriage act, passed in the 1990s), and adds some language that the Fed recognizes gay marriages and that one state must recognize another states gay marriage license.
It does not enshrine or force states to require gay marriage. So if Obergefell (the SCOTUS case that enabled gay marriage) was overturned, states could go back to blocking it, much like they are doing for Roe/abortion. The only way for Congress to enshrine gay marriage may be via a constitutional amendment (but I'm not sure how states rights work here).
So in the end, the court is trying to get out of the business of being a super legislature.
The Court should be in the business of preserving or expanding rights and not in the business of diminishing them.
The court should not be in the business of preserving or expanding rights - it should be in the business of enforcing laws our legislatures create. I would state 'in my opinion' but this was also the prevailing opinion for most of our history (including our founding).
To change this will require constitutional changes as its just not how our country was set up.
EDIT: Let me be more precise. The purpose of the Court is to clarify rights. It’s job is to decide what exactly is meant by “equal protection”, “freedom of speech”, etc.
I think we agree that the courts job is to enforce laws, and the constitution, that define our rights (or the reach of government).
I think we agree that it would be improper for a court to just make up a right - All people with blond hair can skip lines at dairy queen.
I think the point we are (perhaps?) disagreeing on is what makes a right. I think the historic context of it is the constitution and government laws. I think (perhaps wrongly, I don't know whats in your mind) state that the courts can define new rights.
Like I said - its a hot button topic, and I think I will probably need to remove myself from it soon, but I see this as the court previously creating a right where none exists and asking the legislatures to do their job. I hope that helps explain the thoughts from my side.
Cheers man.
Three highly intelligent and very knowledgeable members of the Court wrote an opinion on why Roe should not be overturned. Their eloquence and reasoning are far greater than mine. You should read what they wrote to see the legal basis of their position. It was not some right made out of thin air as in your Dairy Queen example.
Now 6 members of the court who are equally intelligent and knowledgeable wrote an opinion on why Roe should be overturned. Their eloquence and reasoning are far greater than mine. I read parts of their decision. I disagree with their reasoning. Herein lies the problem.
Human language lacks mathematical precision (I’m a mathematician and not a lawyer) and so we end up in a situation where equally smart, knowledgeable people have completely different conclusions about the same set of statements. This in itself is a cause of chaos.
In what I’ve written to you I have avoided saying things like, “there is no legal basis for overturning Roe”. Clearly there is a legal basis for doing so. Clearly there is a legal basis for not doing so. What I concentrate on are the consequences for this decision. I think the unintended consequences will be dire. Personally I think the Constitution needs to be rewritten. What worked in 1800 isn’t necessarily workable in 2022 in a much larger country with a much larger population.
Its funny - we probably agree with each other on the items you think we disagree.
Seriously though, I do suggest reaching out to your local state representatives if you have never done it. I've done it multiple times and have always been impressed by the discussion, their opinions, and actions from it. This is just general advice disconnected from the article / topic. Hopefully you have a similar experience.
Been a good conversation man.
I think people have gotten used to the supreme Court that pushes a semi-majority opinion of certain topics across the country. We've seen this with abortion, same-sex marriage, and many other topics. The problem is this overrides the Democratic process.
While some people will complain that the federal government is really slow at passing laws, I see that as a good thing. And makes it so that an opinion must be popular around the entire country before it can really become law.
Do you want a supreme Court passing what are effectively new laws if that court had a majority of fundamentalist Christians on it that weren't originalist, but rather pushing their agenda? Then you would get the supreme Court saying there is no right to gay marriage. We could also get the supreme Court to rule that a baby in utero is considered a human life and aborting it would be murder.
Pushing the supreme Court to be only a body that rules on the laws that are available to it and not reading new language into then, I think will make everybody happy in the long run.
The Constitution says nothing about a Department of the Air Force. Should it be legal to have a Department of the Air Force? The Constitution mentions “War Department”. It says nothing about a Department of Defense. Should that be legal? Well, the courts would throw out any challenge to the constitutionality of the Department of the Air Force because of the logical deductions of the statements in the Constitution.
Repeat the process for all statements in the Constitution and after 200 years you get a vast collection of legal opinions and judgments.