Alito asserts his ruling would be a kind of "one time only" thing, as I mentioned, yet it imperils many, many other cases built on precedents like Roe and the right to privacy.
True, Ari. Remember when the ruling in Bush v Gore was supposed to be a “one-time” legal decision? I was listening to a legal presentation and Bush v Gore was referenced as supporting material for the statute or ruling. I questioned how, reciting what we had been told, and I believe, written in that decision in 2000. The speaker agreed, but had no answer.
Considering the source, it’s disturbingly reminiscent of Neville Chamberlain triumphantly waving that piece of paper over his head, declaring, “Peace in our time!”
Then why didn't you write (that) before....I'm from the U.K. and 'know very well about those Germans'........dropped a few bombs on our street (so I'm told).. I'm a bit younger :)
This is an Originalist argument claiming no deep roots in our documents. In fact the entire female sex has no deep roots in our Constitution. Women are not named in the constitution until they win the vote in 1920. You cannot apply the mores of the 18 th century to the 21 st century because the cultures are so different. This flawed argument should not stand.
The entire rationale for the "originalist" theory is restore as much as possible the actual original state -- when only white, propertied males could vote, Black people were only partially human and Native Americans needed to be swept away.
And women were nonexistent as far as the constitution is concerned. Black people weren't partially human, they only counted to give the South more votes. Originalism is ridiculous. No one channels the founders. It is simply a useful ruse to preserve a society dominated by white Christian men.
No one channels the Founders, which was the fatal flaw of Borkean originalism. The best way to think of this is to regard COTUS as a treaty between 13 literal countries. Treaties are amended from time to time. International treaties such as the ICCPR and everyday laws enacted by Congress change the treaty. The rules of contract law control. What COTUS does is provide a framework, limiting public officials' freedom of action.
For example, authentic originalism is quite gay-friendly. Take SSM. COTUS recognizes the right to own property, and the right to contract is a corollary of that right. "Marriage" is a legal agreement between two individuals for mutual support with default terms written by the State, and there is no reason why Ted and Fred can't enter into such an agreement. At least, the States could not find one. I almost felt sorry for the States' lawyers in trying to make the argument in front of Judge Posner, who bench-slapped the poor bastards into the next Circuit. If you have the time, enjoy! https://abovethelaw.com/2014/08/judge-posners-blistering-benchslaps-at-the-same-sex-marriage-arguments/
As an originalist, I must protest. The 9Am is a mandatory canon of construction, equating enumerated and unenumerated rights. The "deeply-rooted" canard is a sop to Burkina minimalism, and has no foundation in COTUS. The 5/14Am right to life is only extended to "persons," and "fetus" ≠ "person." Person is a term of legal art lifted from British law, and the definition was set in 1789 and 1868. An originalist cannot help but get to the holding of Roe. However, Roe was poorly written.
Try having a fetus without a woman. We’re not there yet. I sit in the cheap seats and your response does not compute. Can you speak to someone without a law degree?
You have a right to bodily autonomy. That was the right answer back in 1791, and it is now. The Justices are trying to rewrite the law in their own image, which is above their pay grade.
You interpret the Constitution you have, as opposed to the one that was enacted in 1789. As Justice Scalia counsels, judges must have the courage and modesty to persist when the Constitution “produces results that go against [their] policy preferences.” Michigan v. Bryant, 562 U.S. 344, 394-95 (2011) (Scalia, J., dissenting). While I would have preferred that we had ratified the ERA back in the day, as RBG correctly asserted, it is enacted in substance if not in form. Remember that COTUS specifies that properly enacted laws and treaties are an equal part of the law of the land, and that law has codified equality.
It's not originalism. To the originalist, every word of the Constitution has meaning, and we are to give those words their ordinary meaning. There is no way an honest originalist can get to Dobbs.
Nancy! That IS how you see it however, this site IS MEANT to be discussed with our comments, just wondered what would become IF we all used similar words i.e. nonsense!
I'd be interested in a follow-up, as to WHY you used it.......you have an impressive (portfolio) so, I was hoping for a more inclusive response to fit it :)
Originalism is an anti democratic construct dressed up as patriotism, a common practice these days on the right. I did not realize that their are rules that govern our responses.
I try to speak in plain language. I sit in the cheap seats. We are in the middle of a right-wing takeover of our government and taking control of courts is a classic move in the process. Originalism popped up out of The Federalist Society plan to make America a white Christian nation dominated by white men and Originalism is every bit as bad law as the new vigilante laws.
No, these people constantly refer to the "original intent," their ideas parallel those who insist on Biblical literalism. The result is ossification, detachment from evolved reality and in the case of courts and the law -- racism, sexism and anti-LGBTQ bigotry -- adoned with specious legal theory.
"Original intent" is why Roe was properly decided. The original intent of the 9/10Am was to establish that unenumerated rights like that to bodily autonomy were on the same legal footing as the right to speech and assembly. Madison expressly attempted to stop what Samuel Alito is doing in Dobbs.
The actual Roe opinion was intellectual vomit, which is what you get when you apply Burkean principles to the law.
Also, keep in mind that the word "person" was taken from British law, and had the same meaning. And in 1789 and 1868, "person" ≠ "fetus." If the definition can be changed by future courts, "persons" can include fetal life.
The only legal redoubt we have is to insist that the decision be originalist.
This adherence to 18th century ideas and definitions is the essence of a decaying, ossified society.
No one should care how long-dead Britons defined a "person."
The Constitution is an outmoded, 18th century structure that inhibits progress and assures minority white rule. It was framed in a vastly different time, and the intent of its creators is not relevant or important.
COTUS is a treaty between 13 co-sovereigns. It has a myriad of latent flaws, the most critical of which being that our judges have insulated themselves from accountability for willful misconduct in office. Article III states that judges hold their offices during good behaviour, and that phrase was well-defined at the time of the Founding. What it meant was that, if a judge didn't do her job, she would lose her job, and any aggrieved litigant could remove her from the bench pursuant to a writ of scire facias.
There is nothing in modern society that originalism can't address. If you don't believe this, tell me what changes you would make to our governing documents, and how you could get everyone to agree to this. The outsized power residing in small states in choice of POTUS can be fixed by expanding the number of Congressmen to 10,000, in line with George Washington's proposal (which was the original First Amendment). A simple bill would do it.
Originalism is bogus law. It uses linguistics and mysticism in the service of ideology. The right wing not only believes they channel the founders; they also believe they channel God and have been trying to engineer the Rapture. We revolted against England. It was allowing slavery that created all our democratic dilemmas.
The originalist answer is that natural rights are retained unless ceded pursuant to the Constitution, and that it only protects the life interests of "persons." As a fetus was not a person in 1789 or 1868, it does not protect fetal life. And precisely because that word does have a fixed meaning, an Alito or a Amy Coathanger Broodsow can't change it to include zygotes.
As Justice Scalia so adroitly put it, "the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." Antonin Scalia, God’s Justice and Ours, First Things (May, 2002) at 17. And he was in stellar company. As James Madison observes, there is one and only one proper way to interpret the Constitution:
"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers."
James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910), accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.
The living Constitution leads inexorably to a judocracy, for if a word means precisely what they mean it to mean. the judge is your master.
Sorry, a bit too esoteric for me to follow. James Madison may be considered the father of the constitution by conservatives but he owned slaves and violated the ideals on which our nation was founded and he spoke for Southerners in the original debates. I cannot tell where you stand on this but the documents I love are not dead and antiquated. They are organic and evolving. The right-wing does not get to have the last word on the interpretation of our documents because we stand to lose our rights and our democracy/republic to the control of the minority or even the one. While Originalism may be a creative approach to forcing America to accept conservative values it is not acceptable as law for use in our Supreme Court. And, treaties and contracts do not define societies. Judocracy, that’s a new one for me.
No. The originalist answer is that rights are retained unless ceded pursuant to the Constitution, and that it only protects the life interests of "persons." As a fetus was not a person in 1789 or 1868, it does not protect fetal life. But if the Constitution provided that protection (it doesn't), I would have to say yes. And as I am in the process of asking CJ Roberts:
"CNN reported that, in a speech before the 11th Circuit Judicial Council, you described the leak of a rough draft of Justice Alito’s Dobbs opinion as “absolutely appalling.” But what is more appalling: the fact that we now know that you put rat meat in the sausage, or that there is in fact rat meat in the sausage?"
Let’s deconstruct Alito’s bloody back-alley abortion of an opinion. His cardinal error was in not beginning with the Constitution. “Even though the Constitution makes no mention of abortion….” Anyone who passed ConLaw in law school knows that that fact is irrelevant to the question at hand. Otherwise, Clarence Thomas couldn’t be legally married to his current wife. Madison put this canard to bed even before the Bill of Rights was ratified.
For the most part, judges tend to eschew dramatic changes to avoid the appearance of writing law from the bench. The Footnote Four approach to rights jurisprudence reflects this reticence, but at the price of relegating the Ninth Amendment to the dust-bin of history—invoking the ethereal concept of substantive due process to specially protect only rights which judges deem as being “deeply rooted in this Nation's history and tradition,” e.g., Moore v. East Cleve-land, 431 U.S. 494, 503 (plurality opinion), or somehow "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Courts require a "careful description" of the asserted “fundamental” liberty interest, Reno v. Flores, 507 U.S. 292, 302 (1993)—an engraved invitation to an orgy of judicial discretion. In turn, it has the noxious effect of elevating some rights to the exalted status of ‘fundamental’ while disparaging and denying others, thereby doing violence to the plain meaning of the Ninth Amendment. Barnett, Lost Constitution at 254. It creates no principled rule of decision, as the outcome of any given dispute is more a function of the judge’s personal predilections than anything else.
The "deeply rooted" rule of Glucksberg is constitutional eisegesis. Roe is and should be sound law.
Whenever a judge wants an outcome badly enough, s/he will “lie to get it." Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 135 (1960). “[H]alf the truth is often a lie in effect,” Twing v. Schott, 338 P.2d 839, 841 (Wyo. 1959), and this is where Alito is caught out. He cites Hale, Bracton, and Coke for the proposition that at common law, the abortion of a fetus after quickening was a crime, which is only half the story. Justice Blackmun wrote that “[i]t is undisputed that at common law, abortion performed before "quickening"—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.” Roe v. Wade, 410 U.S. 113, 132-33 (1973). Thus in effect, Roe constitutionalized the common law.
The famed Judge Richard Posner confesses that appellate judges routinely take indecent liberties with both facts and precedent, in an often-transparent effort to conceal the fact that they are not so much interpreting the law as rewriting it to comport with their personal preferences—“constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent"—a process colorfully characterized as "fig-leafing." Richard A. Posner, How Judges Think 144, 350 (Harv. U. Press 2008). Dobbs is a personal opinion in search of a justification, and it shows.
Your coverage has been the most detailed and honest. Thanks Ari!!!
I first heard the news on Rachel's show. I honestly wasn't surprised. I knew all three nominees were not being truthful about overturning Roe. But it is still infuriating how the GOP are more concerned about the leak, than the contents of the Court's draft opinion.
Yes, it's hard to see no accountability so far. But I'm glad to make you laugh. We all could use some laughter these days. And yes, those liars were lying all along! 🙂
They rather deflate from the issue and continue their agenda. Giving birth is not life unless theire is quality of.life. A mother who sends her child to live somewhere else because boyfriend doesn’t want him. That’s birth but not life. Quality of life love being wanted This attempt to take away a woman’s right and choice affects so much more Reminder separation of church and state. Republicans remember government shouldn’t interfere with your life you have a right of choice. Rights not respected because I disagree with them. Tonight let’s think about women and birth Then we can think about life and what it means
Oh Diva, you're right. These right wing nuts are the worse snakes the former guy allowed to emerge from their snake pits. They are attempting to to stray away from the real crime against women.
Yes Ari I'm 75 I remember. I have never believed my personal feelings should be forced on others. Sadly our SUPREME COURT has become nothing more than another branch of government now being hollowed out with no credibility. I say this sadly.. Democracy (small d) is a idea of checks and balances. Tony
I agree with you, Tony. I'm Catholic and totally PRO-life, but I don't think a woman should be forced to carry a pregnancy to term. And, I never thought my personal feelings should matter when it comes to deciding law, so I don't understand why the Supreme Court Justices clearly think their personal feelings matter.
I'm 76, and I remember when Roe was handed down, too. I'm sick and tired of extremists, corruption, and the worship of money. These "things" are ruining democracy, and it seems like these "things" are at the bottom of the stinking mess we are wading through. Worldwide. Sounds dramatic, perhaps. But it just boils down to this, in my view. I admit to being scared. Not for me, really. But for all the women, men and children who would be affected by this draconian step backwards. I am reminded of Justice Sotomayor's query at the time the Court was discussing Mississippi’s controversial 15-week abortion ban. What would be the consequence if the Court were it to undermine the 1973 decision in Roe v. Wade and related rulings? She asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.” Justice Sotomayor is already correct. I'm gutted.
What did you think when you first heard about this draft?
I was very sad and disappointed ☹️ I thought that the decision was totally unacceptable!
Where are the laws for men’s bodies?
Why is the U.S. Supreme Court taking away women’s rights to decide what they do with their bodies?
No man has the right to decide what any woman does with her body…simple as that!
All things that are happening nowadays (banning abortions, banning books etc.) are stemming from GQP members, “conservative Christians” who are working tirelessly to take us back to the civil rights movement days or even back to Jim Crow era. I called those “conservative Christians” - wolves in sheep’s clothing. Even when these people claim that “abortion is murder”, it is not up to them to make the decision for women or force their religious beliefs to women .
The decision to have abortion should be up to the woman and her doctor.
Oh Sandra, my thoughts exactly about these men's bodies being protected. They can get a female pregnant, and are not held responsible for their irresponsibility.
Maybe a law that in cases of sexual assault, an automatic vasectomy.
Hi, Lady O! It’s about time we go full force to elect more women to these offices. Perhaps then, we can make some laws for men’s bodies. Starting with, “Shut the hell up!” Except for Ari, of course.❤️
The news struck me like a gut punch, adding to the battering I'm experiencing from the current widespread rollback of voting rights and attacks on the teaching of history in Republican-led states. As a teenager, I participated in the modern-day struggle for voting rights, educational equity, fair access to public services and housing, equal justice under the law, etc.; and in those days, women could not end pregnancies legally. Activism resulted in Congress and the Supreme Court granting so many rights -- including marriage equality -- in the last 50+ years. To see these rights eroded or wrested away, and to witness us having to fight these same batttles all over again in the twilight years of my life, is painful.
Thank you always, dear Ari, for your truth and caring journalism. I have a new TV provider and I'm finding it hard to see you daily as I used to. But - I'm moving, so will see how the TV goes.
I almost threw up when I first heard about it on MSNBC. I had hoped you would cover it and was thrilled to see you interviewing various protesters who had gathered in DC. It's also sickening that the SC is concerned about it's OWN privacy but not that of women.
And, I am also of the belief that this would be the beginning of the end for other laws...🤢
Hi Sandra!!! It's been a really frustrating week. I always trusted the honesty of the Supreme Court. They have become an institution of personal agendas. I too feel this is only the beginning of our constitutional rights being taken away from all of us.😢 Let's hope for a better week, enjoy the rest of your weekend.🙏
Ari, I’ve found that a lot of your newsletters, questions for your readers, and segments on The Beat pulls me into personal life experiences. I do believe Roe v. Wade will be struck down next month. And I was here in 1973 at a very influential time in my life when Roe v. Wade became the law of the land. I was in college, away from home for the first time and living a fun and free life. I had a pregnancy scare that fortunately was a false alarm. But, options were there, abortion being one of them. Every woman should have all available options and domain over their own body. It scares me to think about what basic human right will be next. My hope is this will backfire on the Supreme Court which in turn will backfire on the GOP come the 2022 mid-terms and in 2024. Vote Blue everyone! Our freedoms depend on it.
Hi Kathy!!! Thank you for sharing your story. If Roe is going to be overturned next month, we will be hearing so many tragic stories. Yes, let's hope this backfires on them, VOTE VOTE VOTE!!!!🇺🇸🇺🇸🇺🇸
To answer your question a the end of your show today. "What drink are you having to end the week" ? My non alcoholic drink is, freshly squeezed limeade, with a splash of orange juice, cranberry juice and lots of crushed ice.😊 Have a fun weekend!!!🎵💗😁
Yes, it was my generation that fought & won the right that has protected; girls and women from back alley abortions & death from abortion to this day. Saying what is the objective, the way in which the draft was written., It's about all the progress stated being taken away. This is not the way of a Democracy. The choice is ours.
Dear Ari, I’m a big fan of your show, and your commentary of issues of today are both profound and thought provoking. This is neither an idea or question, it’s a personal story of another societal failure on the issue of abortion in this country. This latest abortion issue is despicable as it gets, and is an assault on women and the family. I’m personally appalled by any suggestion of the SCOTUS overturning Roe v Wade. I think about my uncle who spent 10 years in jail back in the 50s for performing abortions. My uncle was a good doctor who saved the lives of many women - and men. During that era when desperate women who were victims of vicious rape and incest were using coat hangers and ingesting various drugs and homemade remedies to miscarry an unwanted fetus, my uncle was there for them. They didn’t have birth control pills during that time so women went to him because there was no one else to go to. Sadly, he was unable to save one women and unfortunately she bled to death after self inserting an object prior to going to his office. Because she was in his office at the time, of course he was taken into custody and later jailed. Before that tragedy, our family was well to do. During those days we lived in the Washington DC area of Black Broadway and his office was on the corner of 14th and U Streets. He was also delivering babies, serving his community and one of the primary surgeons at the old Freedom Hospital. He also owned properties on neighboring streets, but after that incident, everything was lost. I suppose being Colored back then didn’t help much either. So when this issue surfaces again and again, the sacrifices my uncle made and the effects it had on our family, always brings back those sad memories. In today’s America, this issue, voting rights and gun laws ARE it’s civil war. Our government and now the Supreme Court are trying hard to take away the freedoms and safeties of the larger demographic. How the hell can that happen? Thanks for indulging me.
Rudy, thank you for sharing your family's story. It's a sad realization, that our country is going back to those days. God help us to find a way to get these lawmakers to change their views, and vote to save the right that every woman has had for 50 years.🙏
My first thought was Justice Roberts leaked it. We know he wanted to preserve settled law. He knows if this ruling comes down as written it would cause chaos because its wrong. He wants a possibility that public pressure will change at least one mind. He knows by announcing the investigation into the leak he would be less suspect. He knows there would have been a time when over turning Roe would have been met differently. But now, with a court bought & paid for by the Federalist Society, and the undermining of court vacancies by McConnell & Trump, we are way past that time. He believes in the santacy of privacy, freedom & rights. He knows to remove those rights from half of the population would be a travesty, especially under these less than democratic circumstances that got us here. He knows this is a Hail Mary. He knows this reversal of rights would make the Insurrection look like a cake walk. He knows.
What's illogical is the thought of living cells needing to be saved. Hey, isn't that cancer too. Should we ban removing cancer? Oh, Wait...that would mean men too, so can't go there.
Excellent point 👍🏽 This reminds me of Henrietta Lacks, whose cancer cells were used for research. Her family claims her cancer cells were taken without her consent and is fighting this in the court
Overturning Roe?
If so, we’re continuing to trip the light fantastic down the road toward Fascism. What’s next? Who’s next??
"Who is next" is a fair question, George.
Alito asserts his ruling would be a kind of "one time only" thing, as I mentioned, yet it imperils many, many other cases built on precedents like Roe and the right to privacy.
True, Ari. Remember when the ruling in Bush v Gore was supposed to be a “one-time” legal decision? I was listening to a legal presentation and Bush v Gore was referenced as supporting material for the statute or ruling. I questioned how, reciting what we had been told, and I believe, written in that decision in 2000. The speaker agreed, but had no answer.
A “one time only” thing. Uh huh, you bet.
Considering the source, it’s disturbingly reminiscent of Neville Chamberlain triumphantly waving that piece of paper over his head, declaring, “Peace in our time!”
We all know how that turned out.
Chamberlain was a babe in the woods…Alito isn’t.
George, yes we do know! But are you blaming that war on this man's comment?
Surely not!
What in the world are you thinking, Bernadette?
Of course not. My point is that Chamberlain was hopelessly gullible and believed Hitler’s BS…because he desperately wanted to.
“Peace in our time!” demands the same level of blind gullible belief that Alito’s “one time only” statement demands.
Again, who’s next? What’s the next domino to fall?
If you think that the Right will stop there, please review Chamberlain’s visit with the Nazis.
Then why didn't you write (that) before....I'm from the U.K. and 'know very well about those Germans'........dropped a few bombs on our street (so I'm told).. I'm a bit younger :)
Good lord, Bernadette…time to refine your reading comprehension skills.
Glad that your relatives survived The Blitz.😘
Well now George.......why don't YOU tell us women what's next! Since no man that I ever knew actually gave birth to "ANYTHING" lol
See above, Bernie. Your twisting of my comments and intent is…um…impressive. How’s life alone?
This is an Originalist argument claiming no deep roots in our documents. In fact the entire female sex has no deep roots in our Constitution. Women are not named in the constitution until they win the vote in 1920. You cannot apply the mores of the 18 th century to the 21 st century because the cultures are so different. This flawed argument should not stand.
The entire rationale for the "originalist" theory is restore as much as possible the actual original state -- when only white, propertied males could vote, Black people were only partially human and Native Americans needed to be swept away.
And women were nonexistent as far as the constitution is concerned. Black people weren't partially human, they only counted to give the South more votes. Originalism is ridiculous. No one channels the founders. It is simply a useful ruse to preserve a society dominated by white Christian men.
No one channels the Founders, which was the fatal flaw of Borkean originalism. The best way to think of this is to regard COTUS as a treaty between 13 literal countries. Treaties are amended from time to time. International treaties such as the ICCPR and everyday laws enacted by Congress change the treaty. The rules of contract law control. What COTUS does is provide a framework, limiting public officials' freedom of action.
For example, authentic originalism is quite gay-friendly. Take SSM. COTUS recognizes the right to own property, and the right to contract is a corollary of that right. "Marriage" is a legal agreement between two individuals for mutual support with default terms written by the State, and there is no reason why Ted and Fred can't enter into such an agreement. At least, the States could not find one. I almost felt sorry for the States' lawyers in trying to make the argument in front of Judge Posner, who bench-slapped the poor bastards into the next Circuit. If you have the time, enjoy! https://abovethelaw.com/2014/08/judge-posners-blistering-benchslaps-at-the-same-sex-marriage-arguments/
Swept away? How about killed ?
As an originalist, I must protest. The 9Am is a mandatory canon of construction, equating enumerated and unenumerated rights. The "deeply-rooted" canard is a sop to Burkina minimalism, and has no foundation in COTUS. The 5/14Am right to life is only extended to "persons," and "fetus" ≠ "person." Person is a term of legal art lifted from British law, and the definition was set in 1789 and 1868. An originalist cannot help but get to the holding of Roe. However, Roe was poorly written.
Try having a fetus without a woman. We’re not there yet. I sit in the cheap seats and your response does not compute. Can you speak to someone without a law degree?
You have a right to bodily autonomy. That was the right answer back in 1791, and it is now. The Justices are trying to rewrite the law in their own image, which is above their pay grade.
However LawDog...this is the year 2022,"THINGS" have changed
You interpret the Constitution you have, as opposed to the one that was enacted in 1789. As Justice Scalia counsels, judges must have the courage and modesty to persist when the Constitution “produces results that go against [their] policy preferences.” Michigan v. Bryant, 562 U.S. 344, 394-95 (2011) (Scalia, J., dissenting). While I would have preferred that we had ratified the ERA back in the day, as RBG correctly asserted, it is enacted in substance if not in form. Remember that COTUS specifies that properly enacted laws and treaties are an equal part of the law of the land, and that law has codified equality.
No, I am not. But as I have stated at length, originalist analysis inexorably leads to Roe, even if the analysis looks like a Griswold dissent.
Alito's draft opinion is the only bloody back-alley abortion we are talking about today.
It's not originalism. To the originalist, every word of the Constitution has meaning, and we are to give those words their ordinary meaning. There is no way an honest originalist can get to Dobbs.
Originalism was created for this very purpose and a few more reactionary laws. It is nonsense.
Nancy! That IS how you see it however, this site IS MEANT to be discussed with our comments, just wondered what would become IF we all used similar words i.e. nonsense!
I'd be interested in a follow-up, as to WHY you used it.......you have an impressive (portfolio) so, I was hoping for a more inclusive response to fit it :)
Originalism is an anti democratic construct dressed up as patriotism, a common practice these days on the right. I did not realize that their are rules that govern our responses.
I try to speak in plain language. I sit in the cheap seats. We are in the middle of a right-wing takeover of our government and taking control of courts is a classic move in the process. Originalism popped up out of The Federalist Society plan to make America a white Christian nation dominated by white men and Originalism is every bit as bad law as the new vigilante laws.
No, these people constantly refer to the "original intent," their ideas parallel those who insist on Biblical literalism. The result is ossification, detachment from evolved reality and in the case of courts and the law -- racism, sexism and anti-LGBTQ bigotry -- adoned with specious legal theory.
"Original intent" is why Roe was properly decided. The original intent of the 9/10Am was to establish that unenumerated rights like that to bodily autonomy were on the same legal footing as the right to speech and assembly. Madison expressly attempted to stop what Samuel Alito is doing in Dobbs.
The actual Roe opinion was intellectual vomit, which is what you get when you apply Burkean principles to the law.
Also, keep in mind that the word "person" was taken from British law, and had the same meaning. And in 1789 and 1868, "person" ≠ "fetus." If the definition can be changed by future courts, "persons" can include fetal life.
The only legal redoubt we have is to insist that the decision be originalist.
This adherence to 18th century ideas and definitions is the essence of a decaying, ossified society.
No one should care how long-dead Britons defined a "person."
The Constitution is an outmoded, 18th century structure that inhibits progress and assures minority white rule. It was framed in a vastly different time, and the intent of its creators is not relevant or important.
LOL..actually Baba here's ONE Brit that is V. Much ALIVE! :)
LOL happy to know that :-)
Abortion is legal where you live, and you don't need a Constitution for that . . . .
COTUS is a treaty between 13 co-sovereigns. It has a myriad of latent flaws, the most critical of which being that our judges have insulated themselves from accountability for willful misconduct in office. Article III states that judges hold their offices during good behaviour, and that phrase was well-defined at the time of the Founding. What it meant was that, if a judge didn't do her job, she would lose her job, and any aggrieved litigant could remove her from the bench pursuant to a writ of scire facias.
There is nothing in modern society that originalism can't address. If you don't believe this, tell me what changes you would make to our governing documents, and how you could get everyone to agree to this. The outsized power residing in small states in choice of POTUS can be fixed by expanding the number of Congressmen to 10,000, in line with George Washington's proposal (which was the original First Amendment). A simple bill would do it.
Overthrow the capitalist oligarchy and substitute a socialist state, a modern state that can adapt, not burdened by sacred texts.
Originalism is bogus law. It uses linguistics and mysticism in the service of ideology. The right wing not only believes they channel the founders; they also believe they channel God and have been trying to engineer the Rapture. We revolted against England. It was allowing slavery that created all our democratic dilemmas.
How do you interpret a contract? A treaty?
The originalist answer is that natural rights are retained unless ceded pursuant to the Constitution, and that it only protects the life interests of "persons." As a fetus was not a person in 1789 or 1868, it does not protect fetal life. And precisely because that word does have a fixed meaning, an Alito or a Amy Coathanger Broodsow can't change it to include zygotes.
As Justice Scalia so adroitly put it, "the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." Antonin Scalia, God’s Justice and Ours, First Things (May, 2002) at 17. And he was in stellar company. As James Madison observes, there is one and only one proper way to interpret the Constitution:
"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers."
James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910), accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.
The living Constitution leads inexorably to a judocracy, for if a word means precisely what they mean it to mean. the judge is your master.
Sorry, a bit too esoteric for me to follow. James Madison may be considered the father of the constitution by conservatives but he owned slaves and violated the ideals on which our nation was founded and he spoke for Southerners in the original debates. I cannot tell where you stand on this but the documents I love are not dead and antiquated. They are organic and evolving. The right-wing does not get to have the last word on the interpretation of our documents because we stand to lose our rights and our democracy/republic to the control of the minority or even the one. While Originalism may be a creative approach to forcing America to accept conservative values it is not acceptable as law for use in our Supreme Court. And, treaties and contracts do not define societies. Judocracy, that’s a new one for me.
Listen...LawDog can't possible understand what he's written, he's a man and has NEVER had this issue. It shows in the content of his "argument"....
No. The originalist answer is that rights are retained unless ceded pursuant to the Constitution, and that it only protects the life interests of "persons." As a fetus was not a person in 1789 or 1868, it does not protect fetal life. But if the Constitution provided that protection (it doesn't), I would have to say yes. And as I am in the process of asking CJ Roberts:
"CNN reported that, in a speech before the 11th Circuit Judicial Council, you described the leak of a rough draft of Justice Alito’s Dobbs opinion as “absolutely appalling.” But what is more appalling: the fact that we now know that you put rat meat in the sausage, or that there is in fact rat meat in the sausage?"
Let’s deconstruct Alito’s bloody back-alley abortion of an opinion. His cardinal error was in not beginning with the Constitution. “Even though the Constitution makes no mention of abortion….” Anyone who passed ConLaw in law school knows that that fact is irrelevant to the question at hand. Otherwise, Clarence Thomas couldn’t be legally married to his current wife. Madison put this canard to bed even before the Bill of Rights was ratified.
For the most part, judges tend to eschew dramatic changes to avoid the appearance of writing law from the bench. The Footnote Four approach to rights jurisprudence reflects this reticence, but at the price of relegating the Ninth Amendment to the dust-bin of history—invoking the ethereal concept of substantive due process to specially protect only rights which judges deem as being “deeply rooted in this Nation's history and tradition,” e.g., Moore v. East Cleve-land, 431 U.S. 494, 503 (plurality opinion), or somehow "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Courts require a "careful description" of the asserted “fundamental” liberty interest, Reno v. Flores, 507 U.S. 292, 302 (1993)—an engraved invitation to an orgy of judicial discretion. In turn, it has the noxious effect of elevating some rights to the exalted status of ‘fundamental’ while disparaging and denying others, thereby doing violence to the plain meaning of the Ninth Amendment. Barnett, Lost Constitution at 254. It creates no principled rule of decision, as the outcome of any given dispute is more a function of the judge’s personal predilections than anything else.
The "deeply rooted" rule of Glucksberg is constitutional eisegesis. Roe is and should be sound law.
Whenever a judge wants an outcome badly enough, s/he will “lie to get it." Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 135 (1960). “[H]alf the truth is often a lie in effect,” Twing v. Schott, 338 P.2d 839, 841 (Wyo. 1959), and this is where Alito is caught out. He cites Hale, Bracton, and Coke for the proposition that at common law, the abortion of a fetus after quickening was a crime, which is only half the story. Justice Blackmun wrote that “[i]t is undisputed that at common law, abortion performed before "quickening"—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.” Roe v. Wade, 410 U.S. 113, 132-33 (1973). Thus in effect, Roe constitutionalized the common law.
The famed Judge Richard Posner confesses that appellate judges routinely take indecent liberties with both facts and precedent, in an often-transparent effort to conceal the fact that they are not so much interpreting the law as rewriting it to comport with their personal preferences—“constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent"—a process colorfully characterized as "fig-leafing." Richard A. Posner, How Judges Think 144, 350 (Harv. U. Press 2008). Dobbs is a personal opinion in search of a justification, and it shows.
OH! Lawdog I truly would love to respond...however I don't have the time needed to read your extremely extensive comment. perhaps another day :)
Your coverage has been the most detailed and honest. Thanks Ari!!!
I first heard the news on Rachel's show. I honestly wasn't surprised. I knew all three nominees were not being truthful about overturning Roe. But it is still infuriating how the GOP are more concerned about the leak, than the contents of the Court's draft opinion.
Same. I knew they were lying and I knew this was the long game all along, but it still hurts deep.
😂😂😂The situation isn’t funny, but your comment is: “I knew they were lying…”. Yes, it’s just a free-for-all, without any accountability or punishment.
Yes, it's hard to see no accountability so far. But I'm glad to make you laugh. We all could use some laughter these days. And yes, those liars were lying all along! 🙂
Well stated Olddiva.......as usual :)
They rather deflate from the issue and continue their agenda. Giving birth is not life unless theire is quality of.life. A mother who sends her child to live somewhere else because boyfriend doesn’t want him. That’s birth but not life. Quality of life love being wanted This attempt to take away a woman’s right and choice affects so much more Reminder separation of church and state. Republicans remember government shouldn’t interfere with your life you have a right of choice. Rights not respected because I disagree with them. Tonight let’s think about women and birth Then we can think about life and what it means
V, they’re not even concerned about the leak. As they say, “GASLIGHTING!”
Oh Diva, you're right. These right wing nuts are the worse snakes the former guy allowed to emerge from their snake pits. They are attempting to to stray away from the real crime against women.
It is my firm belief that the Supreme Court will have handed the midterms to the Democratic Party.
Let's hope!!!🙏
God I hope so…fingers crossed 🤞🏽
I hope you're right. I see some even after all of this, who still need some convincing to vote.
Yes Ari I'm 75 I remember. I have never believed my personal feelings should be forced on others. Sadly our SUPREME COURT has become nothing more than another branch of government now being hollowed out with no credibility. I say this sadly.. Democracy (small d) is a idea of checks and balances. Tony
I agree with you, Tony. I'm Catholic and totally PRO-life, but I don't think a woman should be forced to carry a pregnancy to term. And, I never thought my personal feelings should matter when it comes to deciding law, so I don't understand why the Supreme Court Justices clearly think their personal feelings matter.
I'm 76, and I remember when Roe was handed down, too. I'm sick and tired of extremists, corruption, and the worship of money. These "things" are ruining democracy, and it seems like these "things" are at the bottom of the stinking mess we are wading through. Worldwide. Sounds dramatic, perhaps. But it just boils down to this, in my view. I admit to being scared. Not for me, really. But for all the women, men and children who would be affected by this draconian step backwards. I am reminded of Justice Sotomayor's query at the time the Court was discussing Mississippi’s controversial 15-week abortion ban. What would be the consequence if the Court were it to undermine the 1973 decision in Roe v. Wade and related rulings? She asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.” Justice Sotomayor is already correct. I'm gutted.
Hi Ari 😃 Happy Fri-YAY eve (almost Fri-YAY!)😃
What did you think when you first heard about this draft?
I was very sad and disappointed ☹️ I thought that the decision was totally unacceptable!
Where are the laws for men’s bodies?
Why is the U.S. Supreme Court taking away women’s rights to decide what they do with their bodies?
No man has the right to decide what any woman does with her body…simple as that!
All things that are happening nowadays (banning abortions, banning books etc.) are stemming from GQP members, “conservative Christians” who are working tirelessly to take us back to the civil rights movement days or even back to Jim Crow era. I called those “conservative Christians” - wolves in sheep’s clothing. Even when these people claim that “abortion is murder”, it is not up to them to make the decision for women or force their religious beliefs to women .
The decision to have abortion should be up to the woman and her doctor.
Onwards ever and backwards never
Oh Sandra, my thoughts exactly about these men's bodies being protected. They can get a female pregnant, and are not held responsible for their irresponsibility.
Maybe a law that in cases of sexual assault, an automatic vasectomy.
Vasectomy????? I think I'd like to see it taken a little step further then that. LOL for real :):):)
Hi Donna!!! Oh I thought of "that" other option too!!!😉
Hi, Lady O! It’s about time we go full force to elect more women to these offices. Perhaps then, we can make some laws for men’s bodies. Starting with, “Shut the hell up!” Except for Ari, of course.❤️
The news struck me like a gut punch, adding to the battering I'm experiencing from the current widespread rollback of voting rights and attacks on the teaching of history in Republican-led states. As a teenager, I participated in the modern-day struggle for voting rights, educational equity, fair access to public services and housing, equal justice under the law, etc.; and in those days, women could not end pregnancies legally. Activism resulted in Congress and the Supreme Court granting so many rights -- including marriage equality -- in the last 50+ years. To see these rights eroded or wrested away, and to witness us having to fight these same batttles all over again in the twilight years of my life, is painful.
Thank you always, dear Ari, for your truth and caring journalism. I have a new TV provider and I'm finding it hard to see you daily as I used to. But - I'm moving, so will see how the TV goes.
Great review and coverage. Thank you, Ari.
Hello Ari,
I almost threw up when I first heard about it on MSNBC. I had hoped you would cover it and was thrilled to see you interviewing various protesters who had gathered in DC. It's also sickening that the SC is concerned about it's OWN privacy but not that of women.
And, I am also of the belief that this would be the beginning of the end for other laws...🤢
Hi Sandra!!! It's been a really frustrating week. I always trusted the honesty of the Supreme Court. They have become an institution of personal agendas. I too feel this is only the beginning of our constitutional rights being taken away from all of us.😢 Let's hope for a better week, enjoy the rest of your weekend.🙏
Ari, I’ve found that a lot of your newsletters, questions for your readers, and segments on The Beat pulls me into personal life experiences. I do believe Roe v. Wade will be struck down next month. And I was here in 1973 at a very influential time in my life when Roe v. Wade became the law of the land. I was in college, away from home for the first time and living a fun and free life. I had a pregnancy scare that fortunately was a false alarm. But, options were there, abortion being one of them. Every woman should have all available options and domain over their own body. It scares me to think about what basic human right will be next. My hope is this will backfire on the Supreme Court which in turn will backfire on the GOP come the 2022 mid-terms and in 2024. Vote Blue everyone! Our freedoms depend on it.
Hi Kathy!!! Thank you for sharing your story. If Roe is going to be overturned next month, we will be hearing so many tragic stories. Yes, let's hope this backfires on them, VOTE VOTE VOTE!!!!🇺🇸🇺🇸🇺🇸
To answer your question a the end of your show today. "What drink are you having to end the week" ? My non alcoholic drink is, freshly squeezed limeade, with a splash of orange juice, cranberry juice and lots of crushed ice.😊 Have a fun weekend!!!🎵💗😁
Yes, it was my generation that fought & won the right that has protected; girls and women from back alley abortions & death from abortion to this day. Saying what is the objective, the way in which the draft was written., It's about all the progress stated being taken away. This is not the way of a Democracy. The choice is ours.
Dear Ari, I’m a big fan of your show, and your commentary of issues of today are both profound and thought provoking. This is neither an idea or question, it’s a personal story of another societal failure on the issue of abortion in this country. This latest abortion issue is despicable as it gets, and is an assault on women and the family. I’m personally appalled by any suggestion of the SCOTUS overturning Roe v Wade. I think about my uncle who spent 10 years in jail back in the 50s for performing abortions. My uncle was a good doctor who saved the lives of many women - and men. During that era when desperate women who were victims of vicious rape and incest were using coat hangers and ingesting various drugs and homemade remedies to miscarry an unwanted fetus, my uncle was there for them. They didn’t have birth control pills during that time so women went to him because there was no one else to go to. Sadly, he was unable to save one women and unfortunately she bled to death after self inserting an object prior to going to his office. Because she was in his office at the time, of course he was taken into custody and later jailed. Before that tragedy, our family was well to do. During those days we lived in the Washington DC area of Black Broadway and his office was on the corner of 14th and U Streets. He was also delivering babies, serving his community and one of the primary surgeons at the old Freedom Hospital. He also owned properties on neighboring streets, but after that incident, everything was lost. I suppose being Colored back then didn’t help much either. So when this issue surfaces again and again, the sacrifices my uncle made and the effects it had on our family, always brings back those sad memories. In today’s America, this issue, voting rights and gun laws ARE it’s civil war. Our government and now the Supreme Court are trying hard to take away the freedoms and safeties of the larger demographic. How the hell can that happen? Thanks for indulging me.
I'm so sorry for your loss of your uncle and you're standing in the community---love and peace to all of you
Rudy, thank you for sharing your family's story. It's a sad realization, that our country is going back to those days. God help us to find a way to get these lawmakers to change their views, and vote to save the right that every woman has had for 50 years.🙏
My first thought was Justice Roberts leaked it. We know he wanted to preserve settled law. He knows if this ruling comes down as written it would cause chaos because its wrong. He wants a possibility that public pressure will change at least one mind. He knows by announcing the investigation into the leak he would be less suspect. He knows there would have been a time when over turning Roe would have been met differently. But now, with a court bought & paid for by the Federalist Society, and the undermining of court vacancies by McConnell & Trump, we are way past that time. He believes in the santacy of privacy, freedom & rights. He knows to remove those rights from half of the population would be a travesty, especially under these less than democratic circumstances that got us here. He knows this is a Hail Mary. He knows this reversal of rights would make the Insurrection look like a cake walk. He knows.
That's a possibility.
I wouldn't doubt that possibility. This Supreme Court has become a part of the right wing machine. No confidence at all in their honesty anymore.
I wish we could do a redo of the court. Kind of like picking a jury where you continue until both sides are satisfied.
What's illogical is the thought of living cells needing to be saved. Hey, isn't that cancer too. Should we ban removing cancer? Oh, Wait...that would mean men too, so can't go there.
Excellent point 👍🏽 This reminds me of Henrietta Lacks, whose cancer cells were used for research. Her family claims her cancer cells were taken without her consent and is fighting this in the court
Of course, they only make laws against women.😞