The irony of this line of argument is that an “impartial AI judge” never would have created Roe in the first place. A computer wouldn’t conjure up a right to abortion that’s not expressly listed in the constitution from a right to privacy that’s also not expressly listed in the constitution but is instead conjured up from the “penumbras” of listed rights. Only a human would do such a thing.

The Constitution was explicitly not a “here are your rights, and only these ones” document. The Ninth Amendment states:

> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Sure—but those other rights must still exist and come from somewhere. Where does the right to abortions until viability come from?

The same place my right to pick my nose, eat creme brulee, and hug my kids come from.

It doesn't have to be written down for it to be one.

But you don't have an inaliable right to creme brulee do you? If the FDA/Congress decides dairy should no longer be sold or consumed in the USA then they can pass a rule/law and it would almost certainly be upheld as constitutional. All the politicians might get thrown out by the cheese lovers in the next election. But it would be perfectly legal. The constitution I think is referring to other rights established in English common law previously?

Unenumerated rights are implied, inferred, etc. The right to vote, for example, isn't actually in the Constitution (eligibility is left to the States, and various amendments only forbid certain types of discrimination in eligibility), but everyone agrees it exists to some extent.

Similarly, a right to privacy of some level is generally considered to stem from the Fourth Amendment. The right to freedom of movement is inferred from the Privileges and Immunities Clause.

An attempt by the FDA to ban dairy would likely meet Constitutional challenges, and I'd expect SCOTUS to find some way to deem it a legislative overreach.

English common law has meaning in the US because of State-level actions, not Federal/Constitutional. https://en.wikipedia.org/wiki/Reception_statute (Entertainingly, this means oddities like theoretically having the right to trial by combat in Virginia.)

> Unenumerated rights are implied, inferred, etc.

It’s easier to find some rights implied than others. And the US Supreme Court is unusual in how aggressively it overrules legislatures in finding implied rights.

For example, the European Convention on Human Rights contains an express right to marriage. Yet in 2016, the European Court of Human Rights found that there was no implied right to same sex marriage in the Convention. But the year before, the US Supreme Court had found the same right in the US Constitution, which doesn’t even contain an express marriage right.

The Supreme Court was not designed to be a tribunal of experts that overrules the people on moral questions. Not only is there no basis for that in our Constitution, it’s a departure from how most developed nations understand democracy to work.

> Yet in 2016, the European Court of Human Rights found that there was no implied right to same sex marriage in the Convention.

They've ruled EU states have to recognize other countries' same-sex unions (https://en.wikipedia.org/wiki/Coman_and_Others_v_General_Ins...) and required at least civil unions (https://en.wikipedia.org/wiki/Oliari_and_Others_v._Italy), which puts them well ahead of the pre-Obergefell USA.

You're making my point stronger. The EU Court on Human Rights made those rulings based on the following provisions of the EU Convention on Human Rights:

> Article 8 – Right to respect for private and family life

> 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

> 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

> Article 12- Right to marry

> Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right

Even a dedicated textualist could find the above provisions ample justification for finding a right of same-sex couples to marry. Instead, the EU court adhered to a traditional definition of "marriage" and only found a right to civil unions and to mutual recognition across member states.

The U.S. Constitution, by contrast, contains no remotely similar provisions on which to premise a right for same-sex couples to marry. Yet, five justices, including a Reagan appointee, did just that. The U.S. Supreme Court is vastly less respectful of our democratic process than its counterparts in other developed countries.

The "smart contract" stuff from the cryptocoin crowd is more-or-less an attempt at actually doing the "impartial AI judge" thing. I suppose it'll be interesting to see if they get it sufficiently free of bugs and surprise edge cases that it's useful for more than enthusiasts or people doing sketchy things.

But it seems to be getting closer to the point where we can say AI judges are generally unwise based on real experiment rather than on thought experiment. (Assuming it turns out the way I expect.)