A Court Supreme

[Stavros]

This article argues that the reasoning in the draft decision could indeed be used to overturn other rights. Essentially it says that constitutional rights do not exist if they are not mentioned specifically in the document and there has been a tradition of the state restricting such rights.

I think this is what is known as the 'Literalist' interpretation of the US Constitution. But if one argues that neither Women nor Black people have dedicated clauses in this hallowed document, they are 'the People' referred to in the opening line, although at the time, Black people were not in fact defined as 100% human, so maybe a literalist view could argue that in the context of the time in which it was written, Black people were not included in the deal. On this basis, it is logical for Black people to have the vote removed indeed, it would seem that the 14th Amendment must now be ripe for repeal as it was not envisaged by the Founding Fathers, who we might assume, would have been appalled at the abolition of Slavery. There has been a trend in some 'Right-Wing' historians to revise US history to argue that Lincoln traduced the US Constitution and that the Civil War marks the departure from its original intentions that define the American Revolution. Against this, or indeed, in favour of it, is the classic study by Charles Beard of 1913 which argued that the whole purpose of the Constitution was the 'Conservation' of the property rights of the men who wrote it, benefiting themselves and their class.

A Fascist asks: how do we define the Nation, and who belongs in it? Because if you don't belong here, you must leave. Because if you don't belong you cannot be trusted with the right to be a citizen. If the US is to return to its basic principles on a literalist interpretation of the Constitution, does this mean the Bill of Rights is no longer a valid document, being a compromise, or if you prefer, a 'surrender'? And does it not mean either that Slavery must be re-constituted, or the Blacks rounded up and shipped back to the Africa they came from, which they never wanted to leave anyway?

The implications of this judgment, if true, do not just re-write the law, but history too, just as Alito's document makes stunning arguments about what has happened in US history, and why it is all so wrong. Or is it a lament for the world that has left Alito behind, and it is resentment that drives this twist in the tale that is, or was, America?

A summary of Beard's view is here-
An Economic Interpretation of the Constitution of the United States - Wikipedia

[Stavros]

If a man's sperm is an essential component of life, then maybe men should be banned from ejaculating outside of marriage? Why must women be the only person responsible?

Meanwhile, from yesteryear, but still fizzing-

[broncofan]

I think this is what is known as the 'Literalist' interpretation of the US Constitution.
An Economic Interpretation of the Constitution of the United States - Wikipedia

One issue is whether one should consider the bare text v some broader purpose behind the text but the other issue is a temporal one.

Does a phrase only have the meaning it had when it was ratified? For instance, if a clause protects those rights essential to ordered liberty, does it only cover our conception of ordered liberty at the time of ratification? One argument in favor of this originalist interpretation is that it would only protect the specific things those voting on ratification would have had in mind. An argument against it is that if someone provides a category or a broad standard perhaps it's because they do not want to enumerate the specific items covered and instead want to maintain the flexibility for our understanding of such concepts to evolve.

The 14th amendment protects fundamental rights and also has an equal protection clause which limits legislating by category unless there are compelling and justified reasons to do so.

The politico article had a good explanation for why it's very limiting to only protect rights deeply rooted in our nation's history. It is circular and impedes the protection of rights of people who have historically been discriminated against and therefore undermines the purpose of the 14th amendment. As it said if something has been restricted before then its protection can't be deeply rooted and we are locked into the time of ratification, in this case 1868.

[Stavros]

One issue is whether one should consider the bare text v some broader purpose behind the text but the other issue is a temporal one.

There is a wider issue than the literalist one and the 14th Amendment -the Alito draft states ""The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions" " -but this begs the questions: When does the history of your 'Nation' begin, and what are its traditions?

To some the 'tradition' is the Enlightenment that is said to form the basis of the political liberalism that is 'enshrined' in the language of the Constitution, but to others, it is the legacy of the 'Great Awakening' and the Christian Religious roots of settlers communities without which there would not be a State, let alone a United States. It may be couched in the contrast between Benjamin Franklin and Jonathan Edwards, and I don't see any simple resolution to this issue, if the debate is to be shaped only by those men, mostly men, for whom God, Family and Country are the pillars on which their 'Nation' is built, and without which, they declare, it cannot survive.

It seems to me that the Alito doctrine suggests, maybe even demands, that the 'traditions' of the 'Nation' call up the legacy of settlement that pre-dates 1776, if it is the case that the 'Nation's' history began before July 4th. But this brings with it enough baggage to bewilder the average citizen. The Proclamation of 1763 for example, banned the expansion of settlement west of the Appalachians, an attempt by the Crown to limit settlement, to protect the lands of First Nations that the Crown had fought the French to control. In practical effect, enough people violated the law to make it redundant, but does this mean that law-breaking for personal gain is a 'traditional' right of the Citizen? One thinks of the Bundy clan and their land rights claims.

Whatever, I think this decision is opening up a raft of controversial issues, few of which are going to be resolved by rational argument, not least because there is so little rational thinking involved on the side of so-called 'Conservatives', a political label in desperate need of a definition, or re-definition.

[filghy2]

Does a phrase only have the meaning it had when it was ratified? For instance, if a clause protects those rights essential to ordered liberty, does it only cover our conception of ordered liberty at the time of ratification? One argument in favor of this originalist interpretation is that it would only protect the specific things those voting on ratification would have had in mind. An argument against it is that if someone provides a category or a broad standard perhaps it's because they do not want to enumerate the specific items covered and instead want to maintain the flexibility for our understanding of such concepts to evolve.

Some commentators have noted that the same reasoning would seem to imply that the Court should reverse their recent fundamentalist interpretation of the second amendment. There is no reason to think the original drafters intended the right to bear arms should be absolute and it doesn't reflect the practice that applied over most of the period since then. The conservative majority essentially invented a right that had not previously existed, which is the very criticism they are directing at Roe Vs Wade.

Of course, we know this isn't going to happen. The same justices who consistently argued that electoral matters should be left to the states in other cases were willing to concoct a reason to intervene and stop the Florida recount in the 2000 election.

[filghy2]

Whatever, I think this decision is opening up a raft of controversial issues, few of which are going to be resolved by rational argument, not least because there is so little rational thinking involved on the side of so-called 'Conservatives', a political label in desperate need of a definition, or re-definition.

Radical reactionaries would be more accurate, given their agenda is to reverse the general direction of social changes that have occurred over the past 60 years or so.

[broncofan]

Some commentators have noted that the same reasoning would seem to imply that the Court should reverse their recent fundamentalist interpretation of the second amendment.

I think I have seen some critiques of Scalia's opinion in Heller (second amendment case) that have questioned its fidelity to the originalist method. I had thought to myself while writing the post about Roe that Heller seems to consider intent of the founders at such a high level of generality that it doesn't look much like originalism. For instance, if we think about the guns that the founders could have had in mind, it would likely only have been those in existence or similar. But Scalia skirted this by saying their intent was to protect the kinds of guns that are commonly used for home defense, which is circular as it depends on what restrictive laws are permitted by the Court. Anyhow, the more Conservative Justices favor recognition of a right the more likely they are to read the clause protecting it at a high level of generality that creates an open category.

Trump's Presidency really was a perfect storm disaster for the Supreme Court. It does seem arbitrary that Justices are appointed for life and that the direction of social change in this country depends on who happens to be in power when someone gets sick and dies.

I think even if Roe is not distinguished from other cases depending on privacy rights by principles Justices will be reluctant for the time being to go further. For instance, if they abolish Lawrence v. Texas and states start passing anti-sodomy laws and locking up gay men, will that stand? It's scary to think how far they've already gone.

[broncofan]

Hi Stavros I didn't answer the good questions about stare decisis on the last page because I haven't read Alito's opinion and also only know generally what the principle means but it seems you also do so I had nothing to add.

I think you're right that there is often difficulty in originalism in pinpointing the time period we are looking at and what is rooted in our history. Interpreting the Constitution the way they do means it incorporates by reference so much data that Jurists should be qualified historians in addition to legal scholars. That doesn't make sense to me given what constitutions are.

Scalia (who I use as the quintessential conservative jurist since he was the most ostentatious in defending his methodology) was an originalist for purposes of interpreting the Constitution but I believe he was a textualist for the purpose of interpreting statutes. This second term means that he would look at a statute and believed that nothing should be inferred that is not in the text. Critics would argue that there may be ambiguity and that they should go to legislative notes and discussions in Congress to resolve it. Scalia instead relied on the Webster's dictionary. He was often so literal his readings would thwart legislative purpose.

The reason I mention these differences is not because I like textualism but I actually think it applies better to something like the Constitution which often includes broad categories and ideas, rather than specific prohibitions. A reasonable interpretation of what is written in the constitution applied to any context is a better guide than the undiscoverable intentions of multiple people hundreds of years ago. Constitutions should be timeless and they can be made timeless by interpreting categories in a way that reflects our current understanding of the terms. We shouldn't be forced to go on a fishing expedition to uncover all of the prejudices of the 18th century.

[broncofan]

The reason I mention these differences is not because I like textualism

I'm defending it as almost reasonable not if one is a zealot and thinks something can't be protected unless it is explicitly listed but rather that the words in the text should be interpreted to have the plain meaning they have to the reader. So if you see a phrase like "rights essential to ordered liberty", you don't look for what it meant to the founders but rather how that phrase is commonly understood in the context of our society, and more broadly the world we live.

[Stavros]

The reason I mention these differences is not because I like textualism but I actually think it applies better to something like the Constitution which often includes broad categories and ideas, rather than specific prohibitions. A reasonable interpretation of what is written in the constitution applied to any context is a better guide than the undiscoverable intentions of multiple people hundreds of years ago. Constitutions should be timeless and they can be made timeless by interpreting categories in a way that reflects our current understanding of the terms. We shouldn't be forced to go on a fishing expedition to uncover all of the prejudices of the 18th century.

Many thanks for this, as I think you have summarized the dilemma perfectly, and gives the Constitution a living presence rather than being an historical document locked into its times. This would of course be condemned by Trumpits as a Liberal interpretation designed to defend those parts of the Constitution you like, being silent on the rest, but those who think the Constitution is past its sell-by date have yet to offer the American people anything superior, or maybe they just want Trump to become Eternal President.

But it also helps firm up what the Constitution means today, though I am still not sure, as an historical argument, rather than a political one, if it resolves the conflict between Liberals and Conservatives, or the Religious -vs- Secular foundations of the United States. I would argue the Liberal portal is the key one for American political culture, because it does protects both the Religious and the Secular without enabling one to dominate the other, which is why His Holiness in Texas, is it seems to me, attempting to use the Liberal Constitution for a Religious purpose. And this is where the battle lines have been drawn.