Qualified immunity and asset forfeiture would like a word.
It's clear that they are simply using "originalism" to cherry pick what falls in line with their personal opinions.
The Supreme Court stated that you could not apply handgun laws in a way that privileged one group over another. Historically, if you were black, no gun. White and knew the governor? Weapon up.
The supreme court's policies have been pretty straightforward if you read the constitution. The legislature has the responsibility to write the law. Not the supreme court (which is un-elected), not bureaucrats (who are un-elected) - without explicit law to make it possible.
The fact that everyone is screaming that an unelected bunch of mostly white folks are returning power to congress and telling them - no, be democratic - reveals a awful lot about the current state of the United States.
Claiming this in the same post you accuse someone else of "deliberate misreading" is a bit funny.
New York State Rifle & Pistol Association Inc. v. Bruen goes substantially further than that.
The majority of states in the US will have the same abortion laws they have always had.
If there was a handheld contraption with a trigger that could fire a small nuclear projectile that could destroy an entire city would the right to have one be protected by the second amendment just because it fits the general definition of a gun?
You are just illustrating my exact point. Right to keep and bear arms is explicitly secured in the Constitution that it “shall not be infringed”, whereas nothing of this sort is clearly and explicitly said about abortion rights. Here, again, conservatives focus on what the law actually says, and liberals focus on their preferred policy, and if their preferred policy is not to be clearly and explicitly found in the law, it is instead found in the “emanations of the penumbra”.
An individual right to keep and bear arms was newly discovered in 2008, in a 5-4 decision. It took 220 years for a single vote majority to find evidence of it.
> it is instead found in the “emanations of the penumbra”
That's a funny way of describing the Ninth Amendment.
It's truly hilarious, given the context of when it was written.
https://en.wikipedia.org/wiki/Militia_(United_States)
> During colonial America, all able-bodied men of a certain age range were members of the militia, depending on each colony's rule. Individual towns formed local independent militias for their own defense.
Even today, there are organized, state-run militia (the National Guard) and unorganized, independent militia.
Only in the context of a well-regulated militia, at least until Scalia amended the Constitution in Heller.
Notice the first phrase. Absolutely nothing here says “every Joe wacko can have military grade arms in case they want to overthrow the government “
Tell me it’s originalism to interpret the words above in any way other than what it reads as: a description of state militias.
Regulated means armed with military grade guns, and is not a description of legal oversight (eg regulations)
"A well regulated Militia" literally meant a military armed citizenry.
The intent was to have no paid or professional military and the military was to consist of citizens bringing their arms from home to fight with.
2nd amendment can be losslessly paraphrased:
"because it is important to form well armed mobs, every Joe wacko can have military grade arms"
It literally says a well regulated militia. Fact.
Spare me your creative interpretation masquerading as originalism
>If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says.
The dissertation focuses on that. The actual reasoning might be based on something else. The court is strongly interested in projecting an image of being neutral, and of only going off of the wording of laws, rather than involving their own biases. Thus, the majority opinion should be read as an attempt to assign such a motive to their decision, whereas the dissenting opinions attempt to assign the opposite motive. That is, they attempt to suggest that the majority ruled this way because they are insufficiently worried about climate change.
But that would be backwards and wrong (like a default-allow firewall rule).
No, they didn't. Congress delegating to the EPA (for instance) the power to regulate CFCs to save the ozone layer, does not also delegate the power to the EPA to regulate CO2 to solve global warming.
https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
> The Administrator shall periodically review the list established by this subsection and publish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, but not including releases subject to regulation under subsection (r) of this section as a result of emissions to the air.
At this stage in the climate crisis, we really need to be focused on direct results of political actions. The majority of the US population wants regulations to fight climate change, and the consensus among climate scientists is that if we don't aggressively cut carbon emissions immediately, things will get really out of hand. Therefore, if the Supreme Court is reducing the EPA's ability to help this, it is both anti-democratic and massively harmful to the public good. It really doesn't matter that the EPA is executive overreach according to some document written 230 years ago.
Look, even as there might be general agreement among the people to fight climate change, there might be little to no agreement among the people as to how to actually proceed doing that. Because of this, you cannot say that blocking EPA here is undemocratic, because “ majority of the US population wants regulations to fight climate change”: it is very much untrue that majority of people want the exact policy that EPA tries to introduce, and have it be executed by EPA. It’s like saying that majority of US population want regulations to improve their commute times, so SCOTUS cannot block DoT from eminent-domaining land through cities and building 10 lane highways on it. Some people want that, sure, but others want more trains or zoning regulations to improve walkability, and there is no majority agreement here on the details of the policy. You certainly don’t want unelected bureaucrats with no accountability to voters be deciding major issues like that.
In an environment with as much epistemic uncertainty as climatology has, it is madness to allow bureaucrats to control anything at all. They are in no way fit to make important decisions on scientific topics.
My bet? "Interstate commerce."
Seriously.
No, according to the Supreme Court, it's interstate commerce if a butterfly bats its wings and the resulting hurricane causes someone to buy a raincoat in another state.
IIRC, the actual case involved someone growing wheat their own land that they didn't even plan to sell. But since wheat was sold in interstate commerce, the court said any activity involving involving wheat could be regulated as interstate commerce.
https://www.oyez.org/cases/2004/03-1454
> The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market.
RBG didn't see it that way.
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights."
https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...
I'm just curious in what ways this distinction would play out. I can see if "consuming" was illegal and "possession" was not logically works but it's harder to see how "consuming" is legal and "possession" is not doesn't effectively make "consuming" also illegal.
Operating a meth lab is dangerous _because_ it's illegal. If it were regulated and licensed, it would be no more dangerous than say operating an 18-wheel rig.
Guess which two of those Thomas wants to revisit and the one he probably doesn’t?
I didn't really see anything from the dissenting opinion about how the right to an abortion is given by women's right to voting, property or divorce (?).
JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting.
For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.
...
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an un- safe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.
...
The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.
Regarding your previous examples:
- Right to own property: In Kirchberg v. Feenstra, a law giving sole control of marital property to the husband was found unconstitutional under the Equal Protection Clause. So it's related to Roe v. Wade's Due Process argument, but not quite the same.
- Right to vote: This was explicitly granted by the 19th Amendment. Before that, the Supreme Court had ruled in Minor v. Happersett that the 14th Amendment's Privileges and Immunities Clause did not give women the right to vote, though one might imagine that the Roe court (or the Dobbs dissenters) would have disagreed (or would have found that right in a different part of the 14th Amendment).
- Right to divorce: I can't find any major Supreme Court cases trying to establish such a right. All fifty states allow for no-fault divorce, but that's grounded in state law and is only true as of 2010.
Maybe one positive (very long term) outcome of this food fight is the rediscovery of the 9th Amendment and less reliance on the Due Process clause.
That con argument that the right to an abortion is not in the Constitution baffles me. Um, exactly. The framers anticipated these kinds of circumstances. Hence the 9th Amendment.
And many many many people disagree with that idea. Denying that people disagree with that distorts your picture of the matter.
So many on the left view this as some kind of patriarchal ruling, but in my experience it's conservative women who are more against abortion than conservative men.
People are free to disagree with the personal choices free citizens make. People are not free to impose their beliefs on others and force them to carry or birth a parasite through coercion or force. Any conversation about forcing women to birth anything that does not include radical changes to:
healthcare, social safety net, the best parental leave laws in the world, wide carve outs for incest, rape, medical problems, birth defects, litter reduction, to name a few things
is a blatant exposition of the moral bankruptcy of the forced birthers seeking to impose their ideals on others through governmental violence. I haven’t met a forced birther yet that’s thought through all the complications of their grand scheme and come out the other side still a forced birther. Typically they just get mad and devolve into all sorts of fallacious statements, sometimes they storm off, and I’ve walked a few level headed people through enough of the realities of forced birth for them to autonomously realize that such laws cause so much suffering and cost so much in real economic and tax dollar terms that forced birth is regressive and will make the states it takes effect in worse places in all important measures like: infant mortality, student test scores, parental homicide, violent crime, etc— because the research on these topics is unanimous. Access to contraception whether condoms or third trimester abortions is an essential right to maintaining and strengthening a modern society. Anyone that doesn’t want to live in modern society is free to go build an island and reinvent the conservative turned libertarian ascent into liberalism wheel.
The fact that you can’t appreciate a minuscule difference in terminology, and the pointed intent, is all I need to know that you wouldn’t be arguing in good faith. demanding anyone name parasites children is nothing more than a limp wristed attempt at controlling the language used for the discussion as a propagandistic method to be used after a technical (read: pedantic on the level of grade 6 debate club) victory or worse, a legal win due to the erosion of the church state divide which is a flagrant violation of the constitution. I am guaranteed my right to abort as many parasites as I want by my adherence to Satanism as you must bring to term despite crippling defects due to incestuous rape due to your obviously strict adherence to your religion that considers unviable parasites a child. So please tell me about how America cares for children with severe birth defects sacrificed to the care of the state are cared for and how the regressive religions against abortion get the funding to guarantee every abandoned child a life equivalent to the American median. I’ll wait longer than I should because these statistics are impossible to provide because the GOP stops legislating for parasite rights as soon as they’re birthed. I’m also waiting for these organizations to give up their tax exempt status due to their flagrant political meddling.
The government could not control a human’s body or the course of a human’s life: It could not determine what the human’s future would be. Respecting a human as an autonomous being, and granting them full equality, meant giving them substantial choice over their most personal and most consequential of all life decisions.
It is very clear from the text that the decision to have a child is more than just the pregnancy or the birth. It is also about the life-transforming consequences, the childcare and the time and money to raise a child. It is about the social impact and the lives that such choice impact.
All those belong in a human right where willing consent of parenthood should be in focus.
There are always dilemmas and paradoxes. The proper job of the Court is to find the middle path. Consider the whole system and strike a balance. Arbitrate an acceptable consensus.
And that requires mitigating a decision's downsides.
That was the approach of the German Courts. In addition to proscribing the rules around abortion, they also put into place structures to reduce the need for abortions, improving the health and well being of all women and children.
So reasonable. Sounds like heaven.
> On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
The Supreme Court is not supposed to set policy. It's only supposed to rule on if the policy set by others (Congress) is constitutional or not.
If the EPA could do anthing to stop emmisions, banning power plants from existing at all would satisfy "do anything to stop emmisions", so would "depopulating the planet" (no people, no need for power plants). Those seems like they make it pretty clear they need specific limits. They were given specific limits. The court confirmed that.
Congress needs to increase what they're allowed to regulate and how if they want more power. It's frustrating that that's so hard to come by but it's hard to imagine how else it could be
This doesn't accurately represent the present situation on this or really any topic. It makes is sound like members of Congress simply don't care. Unless the filibuster is removed or reformed, a party wishing to legislate on any controversial issue needs a super majority in the Senate to pass the legislation just in that chamber of Congress. They also need control of the House and the presidency. There is plenty of political will in the Democratic caucus to pass this legislation, but due to gerrymandering in the House and the inherently unrepresentative nature of the Senate they cannot get enough votes to pass legislation, however much they may wish to, on the rare occasions the stars align and they have control over both the executive and legislative branches. The Republicans need control over only one of these three choke points to stop legislation. And now that they have a generation of control over the Supreme Court, and the Court has demonstrated that they regard legal argument as post facto justification for political decisions, the Democrats are well and truly screwed. There may be some Republicans who secretly would like to do something about any one of the major catastrophes facing the nation and the world, and some may claim this in public, but because their co-partisans are making total political war on non-conservatives at the moment they can't actually do anything or they face the mob.
Basically, "political will" isn't the issue. It's our crappily designed "democracy" mixed with total political war, strident propaganda, and millennialists who are happy to let the world go to hell because they think they're going to heaven.
FDR set up a bureaucratic state to try to get around this, but it’s not what the constitution envisioned.
I for one am happy that unelected bureaucrats (who the voters have no way to get rid of) now have less power, and that politicians who can be held accountable now have to act explicitly to make big changes. Again, working as designed.
Politicians are held accountable for not doing things as well. In our current system whoever is in power is held accountable, even if they didn't do anything because they were blocked by our byzantine form of government. But the politicians who should be held accountable are the ones who blocked it. Do you view this as a good system?
Consider a scenario:
President Bob and the Do Something party are in power. They really, really, really want to do something. Everyone is yelling at them to do something! Something must be done! But the Do Nothing party uses some procedural mechanism, or their control of the cloak room, or the secret password written on the back of the Constitution, to keep anything from happening. The public doesn't understand the system, because few people do; all they see is that NOTHING IS GETTING DONE. The Do Nothing party is quite pleased to stick all the blame on the Do Something party. They don't enlighten the voters. Even while they block any action they go on TV and solemnly intone about the fecklessness of the Do Something party. They said they would do something! Look what they do when in power! So feckless! So the voters punish the Do Something party at the polls.
This is more or less how our system of government works.
Sometimes something needs to be done. But we can't do anything!*
* Footnote: this isn't strictly true. The Do Something party will cooperate with the Do Nothing party on those rare occasions when the Do Nothingers actually want to do something. The Do Nothing party will not reciprocate.
In this particular case, the majority opinion starts off by quoting the relevant statute and analyzing its meaning, whereas the dissent starts off by saying (quoting) that “climate change is the most pressing environmental challenge of our time”, and continues with a long litany of how bad it is.
Really, I find the entire thing to be rather crazy: if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this. At the same time, the EPA’s argument in this case was that the Congress has already delegated this to EPA. Considering that the Congress won’t pass a law confirming that yes, it did in fact delegate authority to execute these particular regulations (which, again, would render the entire SCOTUS decision irrelevant), I find the EPA’s argument of rather dubious quality.