The use of historical evidence to determine constitutional rights

[berg80]

well because gun ownership is a Constitutional Right....it's in the Second Amendment....an abortion is not a constitutional right.

In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights.[2] These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions.

Penumbra (law) - Wikipedia

en.wikipedia.org

That paragraph essentially explains the principle on which the original Roe ruling was founded and why it should never have been overturned.

 

[berg80]

If it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase “bringing on the menses.” If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had “a common cold” — a euphemism for “obstructed” menses — used a variety of methods, teas and concoctions to bring “their menses back.”
In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after “quickening” — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life “stirring” within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.

The truth is that abortion is deeply rooted in our nation’s history — in practice, in morality and in law. Abortion was not always a crime — although Justice Samuel Alito speciously claims otherwise in his recently disclosed draft majority opinion that would overturn Roe v. Wade.

“An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” Alito asserts in the draft opinion.

Opinion | What Alito Gets Wrong About the History of Abortion in America

Abortion in early pregnancy was not only commonplace but widely regarded as morally acceptable.

www.politico.com

Add another error to the list of Alito's reasoning in arriving at what is not a sound legal opinion but rather a religious based objection to abortion.

 

[Lesh]

If it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase “bringing on the menses.” If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had “a common cold” — a euphemism for “obstructed” menses — used a variety of methods, teas and concoctions to bring “their menses back.”
In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after “quickening” — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life “stirring” within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.

The truth is that abortion is deeply rooted in our nation’s history — in practice, in morality and in law. Abortion was not always a crime — although Justice Samuel Alito speciously claims otherwise in his recently disclosed draft majority opinion that would overturn Roe v. Wade.

“An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” Alito asserts in the draft opinion.

Opinion | What Alito Gets Wrong About the History of Abortion in America

Abortion in early pregnancy was not only commonplace but widely regarded as morally acceptable.

www.politico.com

Add another error to the list of Alito's reasoning in arriving at what is not a sound legal opinion but rather a religious based objection to abortion.

Someone as smart as Alito can not be mistaken about history.

He's a cynical ideologue and a liar

 

[berg80]

The Right to Travel in a Post-Roe World​

Justice Brett M. Kavanaugh signed the recent majority opinion that overruled Roe v. Wade. He also issued a 12-page concurring opinion, writing only for himself. He wanted to discuss, he wrote, “the future implications” of the decision.

“Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” he wrote. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

A few hours later, Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’”

The Right to Travel in a Post-Roe World (Published 2022)

In a concurring opinion last month, Justice Brett M. Kavanaugh said the Constitution did not allow states to stop women from traveling to get abortions. But the issue is more complicated than that.

www.nytimes.com

Once again showing the absurdity of the majority's rationale.

 

[struth]

The Right to Travel in a Post-Roe World​

Justice Brett M. Kavanaugh signed the recent majority opinion that overruled Roe v. Wade. He also issued a 12-page concurring opinion, writing only for himself. He wanted to discuss, he wrote, “the future implications” of the decision.

“Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” he wrote. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

A few hours later, Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’”

The Right to Travel in a Post-Roe World (Published 2022)

In a concurring opinion last month, Justice Brett M. Kavanaugh said the Constitution did not allow states to stop women from traveling to get abortions. But the issue is more complicated than that.

www.nytimes.com

Once again showing the absurdity of the majority's rationale.

it’s not absurd if you understand the process in which the courts determine if someone is a substitive due process right

 

[berg80]

it’s not absurd if you understand the process in which the courts determine if someone is a substitive due process right

Care to be less obtuse? Or was that your intention?

 

[Lesh]

the courts determine if someone is a substitive due process right

Quelle?

 

[struth]

Care to be less obtuse? Or was that your intention?

how am i being obstuse? frankly i think the law professor, who knows better is being obtuse and purposely

 

[berg80]

how am i being obstuse? frankly i think the law professor, who knows better is being obtuse and purposely

it’s not absurd if you understand the process in which the courts determine if someone is a substitive due process right

Explain it or admit you can't.

 

[easyt65]

I can't help wondering how Clarence will feel, given his believe for the need of the explicit enumeration of rights in the Constitution, and the purported over stepping of prior court's authority in that regard, when a state decides to outlaw inter-racial marriage?

I find it humorous how the same extremists supporting assassination attempts, bombings, and calls for Insurrection by Democrats simultaneously seek to pass themselves off as 'Constitutional Scholars' who know more about the Constitution and Constitutional law than actual USSC Justices.

 

[Hutch Starskey]

I can't help wondering how Clarence will feel, given his believe for the need of the explicit enumeration of rights in the Constitution, and the purported over stepping of prior court's authority in that regard, when a state decides to outlaw inter-racial marriage?

The precedent is now set. Everything not enumerated that is challenged must be ruled in exactly the same way lest they be seen as nothing more than hacks.

 

[Hutch Starskey]

Well I sincerely doubt they will. But carry on...oh and don't forget about banning birth control, that seems to be another thing you people are sqauwking about

Clarence has already suggested as much.

 

[martybegan]

I didn't say one was. I said Clarence and friends has set a standard by which interracial marriage, like gay marriage, because both were antithetical to beliefs at the time of the founding (read his concurring opinion in Roe), is open to being banned if a state so chooses.

The thing is gay marriage is a construct of the last 20 years or so, while inter-racial/tribe/class marriage was always around, and really only got banned in the US (and really only between blacks and non-blacks) as a response to the increasing angst over slavery, as well as the after effects of reconstruction failing.

 

[hadit]

The precedent is now set. Everything not enumerated that is challenged must be ruled in exactly the same way lest they be seen as nothing more than hacks.

That's just sour grapes because each case is unique.

 

[Hutch Starskey]

The OP is reaching here. There is nothing in the Constitution protecting interracial marriage.

That’s exactly the OP’s point, fool.

 

[Hutch Starskey]

That's just sour grapes because each case is unique.

Not when Roe was overturned simply because it was not an enumerated right. That same standard will have to be applied to everything otherwise they’re simply hacks acting politically.

 

[Hutch Starskey]

The only thing I'm certain of is Thomas won't vote for the repeal of interracial marriage to be allowed. Beyond that it appears the agenda on the court's right wing extremists knows no bounds.

How can he not though given their logic in overturning Roe?

 

[Hutch Starskey]

That would be the "bear arms," part of the Bill of Rights, under 2nd Amendment.....

Which falls under the rules of a well regulated militia.

 

[hadit]

Not when Roe was overturned simply because it was not an enumerated right. That same standard will have to be applied to everything otherwise they’re simply hacks acting politically.

That's why they're lawyers and you're not. They read laws like you read the menu at Denny's.

 

[FA_Q2]

No, that's not true. What Alito did however, was apply the Sub Due Process test, becuase that's how Roe was decided....and when you apply that test you do look to history and traditions.

We don't have to use the Sub Due Process test for firearms, since the right to bear arms is plainly stated in the Second Amendment

This is true but what makes you think that such matters?

The real point here is that the right leaning court overturned something that had been established for 50 years and was a considered by the left not only settled constitutional protections but also fundamental.

What makes you think the left is going to care one iota how well established the second is? If they ever manage to get 5 seats or they simply pack the court directly, they will absolutely overturn gun rights. The fact that the Row decision's reasoning will not apply is not really relevant as it is not the reasoning that brings the second into question here but rather the mere fact a precedent like this was overturned in the first place. That they overturned something that the left felt was firm win for them already is enough IMHO. The reasoning will come after.


It is not as though the left judges on the court have not already voiced their opinion on how the second is not a right whatsoever. They do that with every single gun challenge that comes before the court. The real problem here is that overturning Row gives the future court the cover to revisit almost anything. This is the problem with revisiting things like this, the idea of legal continuity is essentially gone and fights over what is and is not a constitutional right can now persist forever.