Take a deep breath. Relax. Whichever side of this issue you are on, we will walk you through it.
Sun Tzu wrote "If you know yourself and your enemy, you need not fear the result of 100 battles."
Abortion opponents knew themselves and their opponent (The decision in Roe). They were destined to overturn Roe because, if you read Roe and understand Roe, Roe was deeply flawed not in what it decided but how it was decided. It is not the type of decision and constitutional reasoning you want replicated in Supreme Court jurisprudence. The opponents of Roe knew this days after it was decided.
To understand this, you have to separate social decisions you believe are "right" from correct legal reasoning and jurisprudence. There are a myriad of wrongs you may want to address. Childhood hunger; homelessness; universal health care. Sounds good right? Even utopian.
Now if you are in favor of abortion, know your enemy (see Sun Tzu above). The people who hold opposite views may also truly and deeply believe the United States is a Christian nation; that every day in school should start with a prayer to Jesus Christ; that people should be allowed to carry sidearms everywhere they go; that taxes should be lowered to the point where there is no welfare or unemployment insurance; that people should be in charge of planning for their retirement not the government, so end social security.
How do you want those very different view points of deeply held belief resolved? By popularly elected legislators or judges appointed for life and answerable to no one but their own conscience and views?
Now lets look at Griswold v. Connecticut. In order to find the right to buy contraception and strike down a Connecticut law prohibiting the sale and use of contraception, the court had to find a right to privacy in the constitution. Where did Justice William O Douglas find a right to privacy? In the "Penumbra" and "emanations" of the Constitution. In other words, in the shadows and some type of pulses that he was able to discern. How did he discern what lay in the shadows? Did he have special glasses? Or a special insight others lacked? No. Douglas just wanted to find a right to privacy, and since it wasn't written in the Constitution, but he believed in the result being right, he just found one. Douglas wrote :"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship"
Do you see what Douglas did? He found something repulsive, and wrote that it must be wrong and if it's wrong there must be something in the Constitution prohibiting it. In other words, his personal sensitivities offended, Douglas wrote for a court and legislated away a wrong with a right they created by finding it in the shadows of the bill of rights.
Hurray for Douglas and Griswold. We can now buy contraception and we have a right to privacy. BUT.... Douglas and Griswold set the stage for other judges, generations later to find what they would want to find in the Constitution. A right to carry firearms everywhere. A right not to be taxed for welfare or social security. A right to have a picture of Jesus Christ in every school room and every courtroom. The imposition of the death penalty in a myriad of non-murder cases.
If you live by the sword you die by the sword. If you live by judicial decisions on what individual judges feel is right, then you die by it. If you are a "liberal" do you really want Trump appointed judges "finding" in the Constitution rights that they see in the shadows the way Douglas did? Think about that.
Which brings us to Roe. Read Justice Alito's decision in Dobbs. His criticism of Roe is inexorably correct. And the decision "upholding" Roe- Planned Parenthood v. Casey- did most of the work for Dobbs majority- barely upholding Roe, but abandoning it's flawed reasoning. Proponents of Roe cheered Casey for saving Roe, but they were whistling past the graveyard- cheering the result and ignoring the reasoning. Alito did not ignore the reasoning of Casey, which set the stage for Dobbs.
If you really want to understand Dobbs, read Thomas's concurring opinion attacking the substantiative rights found in the fourteenth amendment. When you read Thomas's concurrence, keep saying to yourselves "if they can do that- if they can find that right- what else can they do?" See Wickard v. Filburn- upholding a law during WWII that a farmer cannot use the wheat he has grown to feed his own animals. Thomas is not attacking same sex marriages, but Roe proponents think he is. Thomas is attacking the way Obergefell v. Hodges found that right- hiding somewhere in the shadows of the fourteenth amendment. Which case does Obergefell cite? Griswold of course.
What is implicit in the holding in Dobbs is that Alito and Thomas are saying "are you really sure you want to put your future and wellbeing in the hands of judges who may or may not think the way you do?" Think of your least favourite Judge. Do you want them finding something in the shadows of the Constitution?
We understand that social impact of Roe and overturning Roe. Should social impact be a part of constitutional jurisprudence? "We cannot find the right to eliminate hunger in children, but everyone agrees it is abhorrent so henceforth a child has a right under the constitution not to ever be hungry..." Which leads to: "We cannot find the right of the government to help people prepare for retirement, henceforth social security is held to be unconstitutional..."
The opponents of Roe took the time to deeply understand the decision, and exploited its flaws. The proponents of Roe simply said and continue to say "The decision that a woman has the right to make decisions about her own body is right. It must be right, no matter how that decision was reached." See Griswold v. Connecticut.
Dobbs takes Roe down on the WAY the decision was reached. As of Saturday morning, the proponents of Roe are just demonstrating that the result in Roe was right. They care not how it was reached. This is a roadmap for a future of unending losses for the proponents of Roe.
They know neither their enemy nor themselves and as Sun Tzu wrote : "If you know neither yourself not your enemy you will succumb in every battle."
30 comments:
Brilliant legal analysis as always.
I concur. Very few scholars truly understand constitutional analysis and legislative scrutiny. Even scholars differ as to whether the constitution is a living document. Justice Scalia can finally Rest In Peace.
Go Rump Go!
Wow. Spot-on legal analysis. Why would a people ever want the existence of their rights to depend on whether 5 lawyer/judges with lifetime appointments decide to recognize those rights? Rights can be created - as they should - by the people at the ballot box, with laws and Constitutional amendments.
Wise ass jerk.
Big Easy E Elortugi wrote a amicus which was as usual brilliant
Shame you’re anonymous. DeSantis would put you on the 3rd or Supreme Court if he knew who wrote this.
Brilliant and insightful and damn straight correct.
To 7:02 yesterday who asked
“Whatever happened to this matter is not before us?”
CJ Roberts did in fact mention that in his concurrence.
Yawn...who's going to the Mets/Marlins game today. First pitch 410 PM?
Rump's twitter is exploding back and forth on this. Youwza!
This is pretty much beter than any forthcoming law review article
Ate at Big Easy E's Pizza place in NYC just off of fifth and the Park. Beef Rib slider slices; black truffle coated thin sliced fried fluke on a slice- you haven't lived until you've tried this. He also has amazing salads stuffed with porcini mushrooms, homemade buffalo mozzarella balls of pure heaven, 35 year old aged balsamic vinegar drizzled like syrup on tomato basil slices; prosecco in chilled glasses; and lemon sorbet cannoli. Best food in the Big Apple.
And he has running commentary on legal cases to boot. Not just dinning but a whole NYC experience. And I bought one of his Maine water colors to boot.
Wait! What just happened?
Roe versus Wade? Either way is fine to cross the Potomac. Whats the big deal here?
CHOOSE LIFE SHOOT EVERYONE IN FAVOR OF ABORTION
Very excellent, well reasoned piece, and the reason that the other issues that we are so concerned about, like interracial marriage and contraception are not in danger is not only because you can develop some half-cocked basis to support them, but because they have become widely accepted, like Brown v, Board of Education. Roe never was accepted an was flawed, a bad combination. We will have to deal wit it on a state by state basis.
But as an aside, I am intrigued by African Americans that claim that Dobbs is racist. Apparently, 19 million black babies have been aborted since Roe. That is just above 35% of all abortions, and Blacks form only13.4% of the U.S. population. Cynics used to say that some of the Roe votes came from folks who thought that Blacks would disproportionately utilize abortions which played onto their hands. The enormous delta between Blacks and the general population in abortions is very unsettling. We cannot afford to have a slow creeping genocide of Blacks.
“Dobbs and Roe v Way explained”. Hey Rump. You may want to edit your Twitter tweet.
Now that the right to privacy is codified in Florida's Constitution in Article 1:
SECTION 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
History.—Added, C.S. for H.J.R. 387, 1980; adopted 1980; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
What happens now? Must we toss Section 23 down the drain? Unlike the penumbra, it is explicitly expressed.
Time to identify all Federalist Society members on the bench and use the ballot box to remove them.
GOOD MORNING MIAMI MARLIN FANS
It was another great night at Loan Depot Park - admit it most of you didn’t even know the real name of the Marlins baseball park. The METS won. Pete Alonso belted TWO blasts out of the park and did you see our closer in the 9th throwing 101MPH ? No of course you didn’t. The entire park was covered in Blue and orange and chanting LETS GO METS!
Miami - it’s not just bad front running heat fans. Marlins fans suck too. Hahahahahaha
Jeeze can’t wait to see what happens when the dolphins start the season.
This is what Rump was saying but better than the NY TIMES
The heart of Justice Alito’s majority opinion is that the 14th Amendment protects only unwritten rights that were already understood to exist in 1868, when it was adopted. Many states then banned abortion, so it was wrong for the Supreme Court, in 1973’s Roe v. Wade, to interpret the 14th Amendment as encompassing a right to abortion, he reasoned.
Rump address this please.
The dissenting justices expressed disbelief at Justices Alito’s and Kavanaugh’s attempts to distinguish abortion from precedents about matters like contraception and same-sex intimacy and marriage. The bottom line, they wrote, was that the reasoning about the 14th Amendment and 1868 was the same for that entire constellation of rulings.
“One of two things must be true,” they wrote. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
Even though the well articulated blog post and vast majority of comments support the Dobbs ruling as correct?
The issue comes forth with the dissents use of the words “constitutional rights”. If they are truly constitutional rights they are NOT under threat. If they are judicially created rights—like in Roe—they are not constitutional rights and ARE potentially under threat if a case or controversy comes before the Court. Resolution? Constitutional amendment or the legislative branch can do its job instead of misleading the public as to who is at fault. Remember in 2009 one Party had the President, the House and 60 votes in the Senate and passed neither gun control nor abortion related laws.
Fred Haise was the real hero of Apollo 13 enough with this revisionist history glorifying Lovell !! Please Rumpole only you can help fix this. I see you on the moon landing blogs and sites posting all the time.
The justices who - under oath - told Congress and the American people that Roe was decided precident - LIED to everyone. Not really surprised that they did, but they lied. They knew they would overturn the decision as soon as they could but acted like it was settled law. They are liars, they betrayed their oath to tell the truth, and have provem themselves to be wolves in sheep's clothing. United States Supreme Court Justices - liars. Oh great. And as to the moron sentaors that voted for them (I'm talking to you Joe Manchin and Susan Collins) who are shocked -- just SHOCKED- that these people told you one thing under oath but then did the polar opposite - you are idiots. Our nation is doomed.
"An unregulated uterus, being necessary to the security of a free State, the right of the people to terminate pregnancies and abort children, shall not be infringed."
Not sure who does not get that the right of fetuses to be treated as people is also not in the constitution. But if they are people, they are sure not American citizens because they were not born here. If they did not file any immigration paperwork, they are what Republicans call "illegal aliens." So they have a right to be kicked out of the country and held in a cage until that can be done. I always enjoy your arguments Rumpole. But when you say "Thomas is not attacking" something, check under the knife because he has a hidden agenda, just like all the Supreme Court justices who lied about their lack of agenda to get in a position to knock off this part of our government.
Can a bar complaint successfully lead to a Justice being disbarred? Then impeached?
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