Just because it was affirmed via interpreted decisions, doesnтАЩt turn it into a constitutional right (itтАЩs not directly IN the constitution..) Who remembers Plessy vs Ferguson and Brown vs The Board of Ed.? ItтАЩs not the first time a decision has been overturned.
Wanting to see something as a Constitutional right and having it as a Constitutional right are two different things. Even RBG knew Roe was shaky.
I agree with Elizabeth that middle ground can only be reached through legislation. This is not what national Dems have been bringing to the floor - legislation that goes beyond Roe - when decades of polling shows that the majority of Americans support abortion for any reason in the first trimester, and with greater limits further along for the life of the mother and late-discovered birth defects of the baby.
agree 100%. The entire question highlights the corruption and excessive politics of Congress, which is need of reform. Congress has wholly abdicated its responsibility to compromise and pass federal legislation. Anger should be directed to our Congressmen and Congresswomen, who no longer do their jobs but spend their time fundraising, posturing and positioning themselves for future political or lobbying positions. The popularity of Congress is even beneath that of our current potus, and that is saying something.
Middle ground can only be achieve with an amendment to the Constitution. Any legislation, even though it may be bipartisan, would still have to pass muster with the Constitution. Legislation must be constitutional first and foremost.
Why canтАЩt it be a federal law like any other? (Serious question- plenty of laws are enacted which donтАЩt have to be an amendment to the Constitution- which would be a massive hurdle getting states to ratify it. We can barely get laws passed as it is.)
If a bipartisan bill was passed in the House, the Senate and signed by POTUS that made gun ownership illegal, in a sense - took away the right to bare arms, any citizen would be in their right to challenge this new law all the way up to SCOTUS. And would likely win. The Constitution has primacy. Federal laws cannot supersede the Constitution. What this means, is that those laws you speak of must either clearly not violate the Constitution or are so murky that no one sought to litigate the matter up to SCOTUS.
I see how that would work for gun laws, when guns are explicitly mentioned in the Constitution, but I still wonder if it would be necessary here when SCOTUS just ruled the court shouldnтАЩt have taken a stance on abortion already, and sent it to the states. But maybe youтАЩre right! Thank you for explaining what you meant a bit more.
Dr. Knox, you commented, "Well, I'd see abortion as a constitutional right." You have a Ph.D. in literature and have written on literature and psychoanalysis. With respect, what qualifies you to have an opinion about Constitutional interpretation? Jurisprudence is as much a specialized field as medicine, so I have to wonder what makes you, as a legal lay person, believe you have any more right to an opinion about how the U.S. Constitution and our federal system works than a medical lay person would have a right to an opinion about which antibiotic to use for a specific infection? There is no shame in a non-specialist having an appropriate sense of humility about his or her understandable limitations. There is no reason you SHOULD have an opinion about the Constitution, any more than I (a non physician) should have an opinion about medicine. But I would therefore never presume to write an article about pharmacology.
Actually, both the fourth and fourteenth amendments have been interpreted as protecting the right to abortion: tps://www.law.cornell.edu/constitution-conan/amendment-5/right-to-an-abortion
As a practicing Constitutional attorney for over 30 years, who has litigated Constitutional questions in federal court, I am certainly aware of the Court's decisions on that topic. And appropriately qualified people can, and have, offered a variety of opinions about the subject. My question is what give YOU a qualification to have an opinion, one way or the other, as to which argument is better grounded in the Constitution?
I'm sure you have opinions about all kinds of things outside of your profession about which you're well-informed. It's possible to be well-informed about the law without being a lawyer. Any citizen can read and form an opinion about the Constitution--and many do.
No, it is not true that any citizen can read and form a meaningful opinion about the Constitution, any more than any citizen can read and form a meaningful opinion about a medical journal article. Even explicit words and phrases in the Constitution do not always have the same meaning they might have in everyday 21st Century speech and require a great deal of context (about both the words themselves and the about way the Constitution functions) to understand in a meaningful way, and the present issue (abortion) is even more difficult because it involves a concept that is NOT found in any of the explicit words of the Constitution. Even when we have text to read, its meaning is not always clear or intuitive: the full meaning of text as seemingly clear as "freedom of speech" and "free exercise of religion" is not clear without a great deal of background (what speech is protected by the First Amendment is one of the more complex areas of jurisprudence, and the meaning of freedom of religion is even more difficult to apply) and the issue of abortion is even less transparent since there is no text to read at all; understanding the Constitutional implications of a non-textual concept such as abortion requires a deep understanding of the way the Constitution works, our federal system, subtle legal concepts and theories layered upon each other, and hundreds of years of legal history, none of which can be obtained simply by reading the Constitution itself.
Earlier, someone gave this link: https://www.commonsense.news/p/the-yale-law-professor-who-is-anti. It is to a podcast of an interview of Akhil Reed Amar, the Sterling Professor of Law and Political Science at Yale university, where he teaches Constitutional law. He himself is openly pro-choice, but is also "anti-Wade," as they put it. It's an interesting listen.
I disagree with you there Dan. This article clearly labeled an opinion piece, and Knox is an American citizen. Therefore she, like all voting citizens, has a voice in the law of our country, regardless of expertise.
Every American citizen has a voice in the POLITICAL process and the right to say -- and vote -- what she feels the law SHOULD be. But this article is not that. This is not an article about what laws our legislatures (federal and state) should enact regarding a particular topic; it is an article that purports to comment on what the law IS -- i.e., what the Constitution says with regard to a particular topic -- and that is a subject requiring specialized background to interpret and understand.
And to the extent the article expresses an opinion about what the Supreme Court should do -- as opposed to what the legislature should do -- that reflects a fundamental misunderstanding of the function and purpose of the Court. The Supreme Court should NOT be influenced by public opinion; indeed the Court's function in our system of checks-and-balances is to act as a restraint on public opinion. The public, through their elected representatives, enact the laws; the Supreme Court's function is to say, if needed, "No, you may not do that, the Constitution prevents it," and that decision by the Court must be based on the text and context of the Constitution, and nothing else.
There are plenty of times in our history when a majority would have been glad to use their numerical power and political strength to oppress a minority (either a minority population or a minority opinion); the Constitution and Supreme Court are the checks on that abuse, and for that system to work the Court MUST ignore public opinion and look to nothing but the Constitution. Citizens have a voice in what laws are enacted, but they do not, cannot, and must not have any voice at all in how the Constitution is interpreted with regard to limits on those laws.
Thank you for this Dan. That was the point of my first comment. The author writes in a manner that displays her fundamental lack of understanding about our system of government. Civics teachers in this country have failed to do their jobs (assuming she was brought up in the US...)
Hi! Are you an American citizen? I see you teach at a German university.
You mentioned Ben Shapiro several times. I stopped listening to him about a 6 months ago or so, so I don't know what he's been saying recently. In the past, he was always clear that he was against abortion except in the case where the mother's life was at risk - which you detailed here. You and he would be on the same page in those scenarios.
Each state has their own constitution, which is inferior to the federal constitution. Some states have abortion as a constitutional right. Some states laws allow partial birth abortion. Other states do not allow abortion at all, only allow abortion before a heartbeat can be detected, during the first trimester, etc. The laws vary. To get a federal constitutional amendment, the people vote on the amendment. It is highly unlikely at this time that the people of all 50 states, who have such varying viewpoints, will agree to one amendment to the constitution.
Also, Americans are allowed to freely travel across state lines.
Well, I'd see abortion as a constitutional right.
Then there needs to be a constitutional amendment to say such. There is not.
For 50 years, the Supreme Court has consistently and repeatedly affirmed that abortion is a right protected by the U.S. Constitution.
Just because it was affirmed via interpreted decisions, doesnтАЩt turn it into a constitutional right (itтАЩs not directly IN the constitution..) Who remembers Plessy vs Ferguson and Brown vs The Board of Ed.? ItтАЩs not the first time a decision has been overturned.
There is nothing about women in the constitution. See this: https://www.newyorker.com/news/daily-comment/why-there-are-no-women-in-the-constitution
Yes, the left had 50 years to seek a constitutional amendment through the convention of states.
They did not. They have only themselves to be angry with.
Wanting to see something as a Constitutional right and having it as a Constitutional right are two different things. Even RBG knew Roe was shaky.
I agree with Elizabeth that middle ground can only be reached through legislation. This is not what national Dems have been bringing to the floor - legislation that goes beyond Roe - when decades of polling shows that the majority of Americans support abortion for any reason in the first trimester, and with greater limits further along for the life of the mother and late-discovered birth defects of the baby.
agree 100%. The entire question highlights the corruption and excessive politics of Congress, which is need of reform. Congress has wholly abdicated its responsibility to compromise and pass federal legislation. Anger should be directed to our Congressmen and Congresswomen, who no longer do their jobs but spend their time fundraising, posturing and positioning themselves for future political or lobbying positions. The popularity of Congress is even beneath that of our current potus, and that is saying something.
Middle ground can only be achieve with an amendment to the Constitution. Any legislation, even though it may be bipartisan, would still have to pass muster with the Constitution. Legislation must be constitutional first and foremost.
Why canтАЩt it be a federal law like any other? (Serious question- plenty of laws are enacted which donтАЩt have to be an amendment to the Constitution- which would be a massive hurdle getting states to ratify it. We can barely get laws passed as it is.)
If a bipartisan bill was passed in the House, the Senate and signed by POTUS that made gun ownership illegal, in a sense - took away the right to bare arms, any citizen would be in their right to challenge this new law all the way up to SCOTUS. And would likely win. The Constitution has primacy. Federal laws cannot supersede the Constitution. What this means, is that those laws you speak of must either clearly not violate the Constitution or are so murky that no one sought to litigate the matter up to SCOTUS.
I see how that would work for gun laws, when guns are explicitly mentioned in the Constitution, but I still wonder if it would be necessary here when SCOTUS just ruled the court shouldnтАЩt have taken a stance on abortion already, and sent it to the states. But maybe youтАЩre right! Thank you for explaining what you meant a bit more.
Dr. Knox, you commented, "Well, I'd see abortion as a constitutional right." You have a Ph.D. in literature and have written on literature and psychoanalysis. With respect, what qualifies you to have an opinion about Constitutional interpretation? Jurisprudence is as much a specialized field as medicine, so I have to wonder what makes you, as a legal lay person, believe you have any more right to an opinion about how the U.S. Constitution and our federal system works than a medical lay person would have a right to an opinion about which antibiotic to use for a specific infection? There is no shame in a non-specialist having an appropriate sense of humility about his or her understandable limitations. There is no reason you SHOULD have an opinion about the Constitution, any more than I (a non physician) should have an opinion about medicine. But I would therefore never presume to write an article about pharmacology.
Actually, both the fourth and fourteenth amendments have been interpreted as protecting the right to abortion: tps://www.law.cornell.edu/constitution-conan/amendment-5/right-to-an-abortion
As a practicing Constitutional attorney for over 30 years, who has litigated Constitutional questions in federal court, I am certainly aware of the Court's decisions on that topic. And appropriately qualified people can, and have, offered a variety of opinions about the subject. My question is what give YOU a qualification to have an opinion, one way or the other, as to which argument is better grounded in the Constitution?
I'm sure you have opinions about all kinds of things outside of your profession about which you're well-informed. It's possible to be well-informed about the law without being a lawyer. Any citizen can read and form an opinion about the Constitution--and many do.
No, it is not true that any citizen can read and form a meaningful opinion about the Constitution, any more than any citizen can read and form a meaningful opinion about a medical journal article. Even explicit words and phrases in the Constitution do not always have the same meaning they might have in everyday 21st Century speech and require a great deal of context (about both the words themselves and the about way the Constitution functions) to understand in a meaningful way, and the present issue (abortion) is even more difficult because it involves a concept that is NOT found in any of the explicit words of the Constitution. Even when we have text to read, its meaning is not always clear or intuitive: the full meaning of text as seemingly clear as "freedom of speech" and "free exercise of religion" is not clear without a great deal of background (what speech is protected by the First Amendment is one of the more complex areas of jurisprudence, and the meaning of freedom of religion is even more difficult to apply) and the issue of abortion is even less transparent since there is no text to read at all; understanding the Constitutional implications of a non-textual concept such as abortion requires a deep understanding of the way the Constitution works, our federal system, subtle legal concepts and theories layered upon each other, and hundreds of years of legal history, none of which can be obtained simply by reading the Constitution itself.
Earlier, someone gave this link: https://www.commonsense.news/p/the-yale-law-professor-who-is-anti. It is to a podcast of an interview of Akhil Reed Amar, the Sterling Professor of Law and Political Science at Yale university, where he teaches Constitutional law. He himself is openly pro-choice, but is also "anti-Wade," as they put it. It's an interesting listen.
I disagree with you there Dan. This article clearly labeled an opinion piece, and Knox is an American citizen. Therefore she, like all voting citizens, has a voice in the law of our country, regardless of expertise.
Every American citizen has a voice in the POLITICAL process and the right to say -- and vote -- what she feels the law SHOULD be. But this article is not that. This is not an article about what laws our legislatures (federal and state) should enact regarding a particular topic; it is an article that purports to comment on what the law IS -- i.e., what the Constitution says with regard to a particular topic -- and that is a subject requiring specialized background to interpret and understand.
And to the extent the article expresses an opinion about what the Supreme Court should do -- as opposed to what the legislature should do -- that reflects a fundamental misunderstanding of the function and purpose of the Court. The Supreme Court should NOT be influenced by public opinion; indeed the Court's function in our system of checks-and-balances is to act as a restraint on public opinion. The public, through their elected representatives, enact the laws; the Supreme Court's function is to say, if needed, "No, you may not do that, the Constitution prevents it," and that decision by the Court must be based on the text and context of the Constitution, and nothing else.
There are plenty of times in our history when a majority would have been glad to use their numerical power and political strength to oppress a minority (either a minority population or a minority opinion); the Constitution and Supreme Court are the checks on that abuse, and for that system to work the Court MUST ignore public opinion and look to nothing but the Constitution. Citizens have a voice in what laws are enacted, but they do not, cannot, and must not have any voice at all in how the Constitution is interpreted with regard to limits on those laws.
Thank you for this Dan. That was the point of my first comment. The author writes in a manner that displays her fundamental lack of understanding about our system of government. Civics teachers in this country have failed to do their jobs (assuming she was brought up in the US...)
Please support your "see". You may wish it to be, but it is most definitely not. Do you "see" it as a natural right or a civil right?
Do you even understand what a "right" is? I'm not sure you do.
Hi! Are you an American citizen? I see you teach at a German university.
You mentioned Ben Shapiro several times. I stopped listening to him about a 6 months ago or so, so I don't know what he's been saying recently. In the past, he was always clear that he was against abortion except in the case where the mother's life was at risk - which you detailed here. You and he would be on the same page in those scenarios.
Each state has their own constitution, which is inferior to the federal constitution. Some states have abortion as a constitutional right. Some states laws allow partial birth abortion. Other states do not allow abortion at all, only allow abortion before a heartbeat can be detected, during the first trimester, etc. The laws vary. To get a federal constitutional amendment, the people vote on the amendment. It is highly unlikely at this time that the people of all 50 states, who have such varying viewpoints, will agree to one amendment to the constitution.
Also, Americans are allowed to freely travel across state lines.
Yes, I am an American citizen.
Thank you for clarifying!
Here's to hoping Melissa and Ben debate this and other issues
I'd rather see a Change My Mind type scenario. Those are more low-key and less antagonistic.
This must be another example of that nuance you were talking about