Uh-oh, SCOTUS original constructionists of the Constitution...

[brush]

better take a look at the 9th Amendment.

It being the 4th of July I thought I'd take a closer look at the Constitution and its amendments. The Second Amendment is of course hugely problematic, as is the EC provision, but Scalia and his disciples must have entirely skipped over THE 9TH AMENDMENT in their strict constructionist theorizing (or chose to ignore it), as it states as follows:

The Ninth Amendment of the United States Constitution states that the federal government doesn't own the rights that are not listed in the Constitution, instead, they belong to the people. The 9th Amendment states that the rights not specified in the Constitution belong to the people, not the federal government.

Huh? WTF? Did I read that right? The Ninth Amendment of the United States Constitution states that the federal government doesn't own the rights that are not listed in the Constitution, instead, they belong to the people. The 9th Amendment states that the rights not specified in the Constitution belong to the people, not the federal government.

So Alito's weak ass argument for striking down Roe because it's not mentionned in the constitution is in direct contradiction to the 9th Amendement, as is Scalia's Heller decision on guns, and all the other originalist claptrap being pushed by the SCOTUS Taliban 6.

I therefore move that blue state attorneys/legislatures immediately draw up bills and pass them that can be moved into the appropriate protocol through lower courts which lead to the Supreme Court taking it up—if they dare.

[elleng]

1. 'the rights not specified in the Constitution belong to the people, not the federal government.'

[onecaliberal]

2. K&R

[SickOfTheOnePct]

3. I take it you didn't read the full opinion n/t

[brush]

5. Meaning what? Be specific.

[SickOfTheOnePct]

12. Meaning

that the opinion acknowledges that not all rights are enumerated (this is the gist of the Ninth Amendment), but that for rights that are not enumerated, there has to be a deep-seated history of that right being respected by the government (not the words he used, but I don't have time to go look up the exact words right now). That's why he went into common law and statutes from the 1800s, to show that abortion wasn't a historical right in the United States.

And it's the Tenth Amendment that states that any rights not laid out for the federal government or forbidden to the States go back to the people.

The long and short of the opinion was that a) abortion isn't mentioned in the text so it's not an enumerated right b) abortion has not throughout the history of the country been deemed an unenumerated right c) since it's not within the purview of the feds and not forbidden to the states, it's up to the States and the people.

[brush]

17. He also mentioned a witch burning advocate of the 1600s...

which IMO should immediately void anything further in his decision, including the 1800s claptrap.

Am I reading you incorrectly, as it seems you concur with the decision?

[SickOfTheOnePct]

19. No, I don't concur with the decision

But one can disagree with an interpretation and still see the basis on which that interpretation was made.

As for the witch-burner, that man was one of the people whose writings on abortion Alito used to show that abortion wasn't traditionally legal under common law past a certain point in a pregnancy.

[brush]

23. IMO it's an unsound decision and won't stand for long.

How can anyone take a decision seriously that references a 1600s witch burner as a source? And I'm sure most would agree that a witch burner advocate would be a wee bit anti-woman, just a wee bit? Right? As is Alito's ruling.

As you know the 9th was cited in the original passing of Roe. What are we to do as a nation that strikes down long-settled law with weak, unsound opinions, a law favored by the majority of the population, that will at some point surely be codified or struck down itself?

We're in sad shape with this extremist court that seems to revel in their fascist leanings.

[SickOfTheOnePct]

25. The answer to the problem is in your own post

What are we to do as a nation that strikes down long-settled law with weak, unsound opinions, a law favored by the majority of the population, that will at some point surely be codified or struck down itself?

(Bolding mine)

Roe never was law, it was never codified, and that's the problem.

Now, might a federal Roe statute have been overturned using the same reasoning as the Dobbs decision? Perhaps, and we might be right where we are now. But while stare decisis is without question foundational, it's not absolute. Precedents have been overturned in the past and will be overturned in the future, perhaps even by justices with whom we agree. Statues are the better way to go.

[brush]

26. We agree.

[In It to Win It]

27. I agree I think

Roe, or maybe after Casey, probably would have been more of a settled law if Court's decision was re-enforced by legislation passed by Congress and enforced by the executive, and maybe re-enforced by additional case law from the Court (because I'm sure someone would have sued soon after passage of the law).

Not arguing that we shouldn't try to codify a Roe/Casey structure, but it is much more of an uphill now than it was a month ago, a year ago, 2 years ago (or whenever we had the chance) because we would have started on constitutional grounds. Congress would just been furthering a constitutional right with legislation.

With Roe and Casey overturned, we're on much weaker ground.

Also, agreed, that statutes are the better way to go.

Also, I thought about the fact that Congress regulates late-term abortions with the Partial-Birth Abortion Ban (admittedly, I am not entirety certain of the time) but took Roe into account on its structure. I wonder of this Court would uphold that law under Congress' authority.

[In It to Win It]

4. Not to be a downer but

the Court decides what is included in those 9th amendment rights as antithetical as that sounds...

These "originalist" tend to gloss over the 9th amendment. The 9th amendment doesn't exist to them at all.

They also tend to gloss over the last 4 words of the 10th amendment.

[brush]

8. That's my point. They're cherry picking amendments they...

wish to obey, and are therefore not really strict constructionists, they're merely favorite amendment constructionists.

[unblock]

13. Their constitutional analysis is actually biblical fundamentalist analysis

It's the exact same way the use the Bible. First decide what you want, then pick and choose the parts that suit you, ignore the parts that don't, twist words if you have to, and insist you best understand the true meaning of the words and intent of the authors

And, of course, anyone who disagrees is heretical, un-american, etc.

[brush]

15. Yes. In more earthier terms, they're FOS.

[unblock]

21. Trenchant analysis, indeed!

[dchill]

6. I'm sure they interpreted that as...

"...rights not specified in the Constitution belong to the former Confederate States."

[brush]

9. Bingo.

[Deuxcents]

7. There is no mention of the words

“Woman”, “women, “she, or “her”. We are those not mentioned and we don’t belong to the government or their laws concerning our choices

[brush]

10. Correct. Those rights not mention belong to the people.

And women are slightly more than half of the people.

[unblock]

11. The problem with the 9th amendment:

yes, it does state that just because certain rights have been listed in the constitution and the bill of rights, that doesn't mean that there aren't more rights of the people that are not listed.

However, the court is effectively free to determine what is and isn't a right.

The 9th surely isn't meant to suggest that any "right" someone could imagine is a right of the people.

As a result, courts can read into or out of the 9th amendment pretty much whatever they want.


The only thing it clearly prevents is any court from saying the people have liter as lot zero rights other than the specific rights listed in the constitution and bill of rights.


Now, I agree with you in principle, and in fact the 9th amendment was one of the amendments cited in the original roe decision. But sadly, republicans won't find this argument convincing.

[brush]

14. IMO it's hypocrisy and cherry picking of amendments.

More justices needed on SCOTUS to counteract the Taliban 6.

[unblock]

18. It's worse than that. It's "we have 6 votes so we can do whatever we want"

From a purely Machiavellian standpoint, they can decide any case however they want, they don't even owe any explanation.

The only purpose they see in writing opinions at all is to extend their power.

Or in some cases, to thinly disguise the above. See bush v. Gore.

[brush]

20. Yeah, they're actually running the country now...

and just waiting for ALEC-like winger organizations to write up bills for red state legislatures to pass and lower courts to rule on and tee-up for SCOTUS to swing away at.

It wasn't a stolen election, as someone else posted, it's a stolen Supreme Court.

[Mr.Bill]

16. And you know what, OP?

Even if you're right, you're wrong until five or more people in black robes say so.

That's why the Supreme Court is supposed to made up of the finest legal minds in the country, not a bunch of paid-for hacks beholden to their sponsor's political agenda.

[brush]

22. Your last sentence is exactly right. They're not the best and brightest.

just the ones who the Federalist Society offered up to do what they're told to do by the extreme right.

[rampartc]

24. these "strict constructionists" consider that the people exercise these rights by

electing state legislatures which can then take them away. this is, of course, baloney.

[Hassler]

28. We fought a revolution against a king's arbitrary rule and now we

Are ruled by a king by committee, six rulers with lifetime appointments, just like a king.

[brush]

29. Yes. Life-time appointments mean we live with what we get...

and if they're dangerous, full-of-themselves-and-their-power, winger extremists, the nation is fu_ked.