A Thought Exercise on Originalism vs a More Activist Approach

[NatMorton]

A woman has the right to make decisions over her body. Though the Constitution doesn't expressly say so, this right can easily be ascertained by a plain reading interpretation of the 9th Amendment.

Then I'll need your explanation on why you don't oppose Roe.

If, as you say, there is no mention of a fetus being a person, and that the only possible reference to a definition of human life in the Constitution is the state of being "born," by what justification did the Roe majority have sanctioning laws that cast aside a woman's "right to make decisions over her body" when the yet-to-be-born fetus is only 13 weeks old?

If the Roe court had actually use the definition of human life you describe here, i.e. being born, they would have prohibited all abortion restrictions, not just those in the first trimester. They didn't, and that's because they established a de facto definition of human life that it can't exist before 12 weeks.

 

[Cordelier]

Then I'll need your explanation on why you don't oppose Roe.

If, as you say, there is no mention of a fetus being a person, and that the only possible reference to a definition of human life in the Constitution is the state of being "born," by what justification did the Roe majority have sanctioning laws that cast aside a woman's "right to make decisions over her body" when the yet-to-be-born fetus is only 13 weeks old?

If the Roe court had actually use the definition of human life you describe here, i.e. being born, they would have prohibited all abortion restrictions, not just those in the first trimester. They didn't, and that's because they established a de facto definition of human life that it can't exist before 12 weeks.

Roe, as decided, had substantial faults, as you note. These were largely corrected by Planned Parenthood v. Casey, 505 US 833 (1992). I'm not arguing that there isn't scope for States to have a "compelling interest" in limiting individual rights - no right can ever construed to be absolute - but, by the same token, any actions undertaken by States must be viewed by the Courts with a jaundiced eye.

 

[NotreDame]

Ok, just a few facts to counter someone’s “opinion” that I’m here for an argument about abortion.

My first mention of Roe in this thread, a thread I started on originalism v activism, was in my 25th post. Prior to that point, I had raised several hot-button Constitutional matters in my 1st through 24th posts including The Federalist Papers and their relevance, the right to bear arms, censorship, unreasonable searches, enumerated powers and what the 9th and 10th say about them, conservative activism, the equal protection clause of the 14th, capital punishment and the 8th amendment, and the concept of “compelling interest. Only then, in post #66 of this thread, did I mention Roe, and I did so in response to an assertion by someone that the Court has never exceeded its Constitutional authority in striking down a law,. To boot, I prefaced my 25th post with the words: “I'm certainly not looking to turn this thread into a moral debate on abortion ...”

Yet someone believes I started this thread and waded through all those constitutional matters just to lure you all in to a debate on abortion policy?

Sheesh.

I think @Cordelier is telegraphing to you Roe cannot be defended by taking an original meaning interpretation of the DPC of the 14th Amendment. He’s right, of course, and it has been my long held view Roe is a misinterpretation of the 14th Amendment DPC.

Despite that, he ties the right of privacy in Roe by linking it to the 9th Amendment. In other words, he says Roe is a misinterpretation of the 14th Amendment DPC as measured by original meaning, but regardless the 9th Amendment protects this right and IS consistent with the original meaning of the 9th Amendment, a view I also concur with based on my research.

He relates the 9th Amendment back to your ink blot in the opening post and original meaning and I doubt its an accident. @Cordelier is an attorney, with a penchant for Constitutional arguments, and I bet he’s all to familiar with the ink blot, 9th Amendment, and Bork. That explains why he is less interested in your beating a dead horse of Roe and abortion, and more interested in the 9th Amendment original meaning that would and does protect a right of privacy to terminate a pregnancy.

I will conclude by saying, having read Bork’s book, “The Tempting of America’s,” and read a transcript of the dialogue about the 9th Amendment and ink blot, Bork wasn’t of the opinion there was no way of knowing what rights were protected by the 9th.

 

[Cordelier]

I think @Cordelier is telegraphing to you Roe cannot be defended by taking an original meaning interpretation of the DPC of the 14th Amendment. He’s right, of course, and it has been my long held view Roe is a misinterpretation of the 14th Amendment DPC.

Despite that, he ties the right of privacy in Roe by linking it to the 9th Amendment. In other words, he says Roe is a misinterpretation of the 14th Amendment DPC as measured by original meaning, but regardless the 9th Amendment protects this right and IS consistent with the original meaning of the 9th Amendment, a view I also concur with based on my research.

He relates the 9th Amendment back to your ink blot in the opening post and original meaning and I doubt its an accident. @Cordelier is an attorney, with a penchant for Constitutional arguments, and I bet he’s all to familiar with the ink blot, 9th Amendment, and Bork. That explains why he is less interested in your beating a dead horse of Roe and abortion, and more interested in the 9th Amendment original meaning that would and does protect a right of privacy to terminate a pregnancy.

I will conclude by saying, having read Bork’s book, “The Tempting of America’s,” and read a transcript of the dialogue about the 9th Amendment and ink blot, Bork wasn’t of the opinion there was no way of knowing what rights were protected by the 9th.

*LOL* Thanks for the (backhanded?) compliment, but I'm definitely not an attorney.

I can't imagine practicing law all day and then coming on here and talking about it some more. (see my sig) Where it comes to the law, I'm more a hobbyist than anything else.

 

[NotreDame]

*LOL* Thanks for the (backhanded?) compliment, but I'm definitely not an attorney.

I can't imagine practicing law all day and then coming on here and talking about it some more. (see my sig) Where it comes to the law, I'm more a hobbyist than anything else.

Lol, not intended to be offensive, I thought you were an attorney. Mea culpa. You are very informed for not being a lawyer or law professor, which is to say you are very knowledgeable on some legal issues, well beyond a layperson understanding.

 

[Cordelier]

Lol, not intended to be offensive, I thought you were an attorney. Mea culpa. You are very informed for not being a lawyer or law professor, which is to say you are very knowledgeable on some legal issues, well beyond a layperson understanding.

Thanks again... and be assured, the same sentiments apply to you as well. One of these days you're going to have to give me a rematch for that Huskisson debate we had a few months back.

 

[NotreDame]

Thanks again... and be assured, the same sentiments apply to you as well. One of these days you're going to have to give me a rematch for that Huskisson debate we had a few months back.

I remember that now. Wow, the abnormal life of pandemic with 12 weeks of shutdown took its toll.

 

[NatMorton]

(snip)
... by the same token, any actions undertaken by States must be viewed by the Courts with a jaundiced eye.

That's an interesting statement. Why?

 

[NatMorton]

I think @Cordelier is telegraphing to you Roe cannot be defended by taking an original meaning interpretation of the DPC of the 14th Amendment. He’s right, of course, and it has been my long held view Roe is a misinterpretation of the 14th Amendment DPC.

Despite that, he ties the right of privacy in Roe by linking it to the 9th Amendment. In other words, he says Roe is a misinterpretation of the 14th Amendment DPC as measured by original meaning, but regardless the 9th Amendment protects this right and IS consistent with the original meaning of the 9th Amendment, a view I also concur with based on my research.

He relates the 9th Amendment back to your ink blot in the opening post and original meaning and I doubt its an accident. @Cordelier is an attorney, with a penchant for Constitutional arguments, and I bet he’s all to familiar with the ink blot, 9th Amendment, and Bork. That explains why he is less interested in your beating a dead horse of Roe and abortion, and more interested in the 9th Amendment original meaning that would and does protect a right of privacy to terminate a pregnancy.

I will conclude by saying, having read Bork’s book, “The Tempting of America’s,” and read a transcript of the dialogue about the 9th Amendment and ink blot, Bork wasn’t of the opinion there was no way of knowing what rights were protected by the 9th.

There is a glaring contradiction that your argument re the 9th and 10th (and also @NWRatCon's) must overcome, and quite honestly, I don't think it can.

The framers were by no means vague on their intent for how they wished the Constitution to evolve with changing times. They spelled out -- in detail -- the process by which new Constitutional rights and prohibitions are enshrined. The did it with the amendment process. The way they designed that process was very consistent with the prevailing concern of the time that a majority of states would too freely impose laws on a minority of states who did not support those laws. This concern, while it took on many forms, was the single largest barrier to ratification of the Constitution itself. To counter that concern, they set the bar for Constitutional change extremely high. One must get two-thirds of the House of Representatives to agree to the proposed Constitutional change. One must also get two-thirds of all Senators to agree. Then one must get three fourths of all the states in the Union also to agree. Only then -- with what can fairly be judged a super majority of opinion if ever there was one -- did the framers sanction Constitutional change.

Your position asserts that after authoring and ratifying this very detailed, very stringent criteria for Constitutional change, the framers slipped in two vaguely worded backdoor methods in the form of the 9th and 10th amendments that allow a small handful of judges, with lifetime tenure, to impose a new Constitutional law on a minority of states -- or even a majority of states -- that may not wish to have that law enacted.

Frankly, that is preposterous. Your interpretation of the 9th and 10th is entirely at odds with what the framers were looking to achieve.

 

[Vadinho]

Then I'll need your explanation on why you don't oppose Roe.

If, as you say, there is no mention of a fetus being a person, and that the only possible reference to a definition of human life in the Constitution is the state of being "born," by what justification did the Roe majority have sanctioning laws that cast aside a woman's "right to make decisions over her body" when the yet-to-be-born fetus is only 13 weeks old?

If the Roe court had actually use the definition of human life you describe here, i.e. being born, they would have prohibited all abortion restrictions, not just those in the first trimester. They didn't, and that's because they established a de facto definition of human life that it can't exist before 12 weeks.

You make a very good point and one that really goes to the heart of the matter in reference to what a human being is and when a human being assumes the protections granted all other human beings in the law. The definition of a human being is very difficult to articulate legally or philosophically. A human being is not a cell nor is it DNA. It is made of cells and DNA but there is far more to it then just biology and genetics. Creating a line where a fetus becomes a human being is not easy especially given the advancements of science and medicine. At the time of Roe, the line was the third trimester. It is possible now to create a baby in a lab without the mother at all. In that setting, what does viability mean? So Roe balanced two competing concerns, the mother and the child. The mother is protected by Roe up until the point where the protection shifts to the child. I believe this was a very wise decision and should have made both parties happy. However, one side considers a fertilized egg a human being upon the first cell becoming two cells. Clearly these two cells are not yet human beings but they have all the ingredients to become a human being with time and nurture.

 

[NatMorton]

You make a very good point and one that really goes to the heart of the matter in reference to what a human being is and when a human being assumes the protections granted all other human beings in the law. The definition of a human being is very difficult to articulate legally or philosophically. A human being is not a cell nor is it DNA. It is made of cells and DNA but there is far more to it then just biology and genetics. Creating a line where a fetus becomes a human being is not easy especially given the advancements of science and medicine. At the time of Roe, the line was the third trimester. It is possible now to create a baby in a lab without the mother at all. In that setting, what is viability mean? So Roe balanced two competing concerns, the mother and the child. The mother is protected by Roe up until the point where the protection shifts to the child. I believe this was a very wise decision and should have made both parties happy. However, one side considers a fertilized egg a human being upon the first cell becoming two cells. Clearly these two cells are not yet human beings but they have all the ingredients to become a human being with time and nurture.

I understand what you're saying, and I agree with most of it. While it's certainly subjective, and for the sake of this discussion, let's agree that the criteria Roe established is well considered and, as you say, wise. My point is this: it doesn't matter if it was a wise decision, or not. My argument is that the Supreme Court lacks the authority to make a decision -- wise or not -- on what constitutes human life and impose that standard on the entire country over the objection of many states, the majority of whose voters and elected officials would prefer a different standard.

 

[Vadinho]

I understand what you're saying, and I agree with most of it. While it's certainly subjective, and for the sake of this discussion, let's agree that the criteria Roe established is well considered and, as you say, wise. My point is this: it doesn't matter if it was a wise decision, or not. My argument is that the Supreme Court lacks the authority to make a decision -- wise or not -- on what constitutes human life and impose that standard on the entire country over the objection of many states, the majority of whose voters and elected officials would prefer a different standard.

Well the rights of a woman are not bound by their residence but by their citizenship as an American. If the courts define a right for them as citizens then it certainly grants the woman that right anywhere in the nation regardless of which state they reside in. So the question is whether or not the court has the power to either grant that right or protect that right. The 9th amendment is clear, it provides us with guidance that we retain rights not yet protected by the courts and the law. So the courts acknowledge a new right, a right to privacy, which is within their power to do so. It is no different then the new right they created in Loving or Brown or Obergfel. If you want our rights to be defined by states and not the courts then you are advocating for a nation where all of us do not share common rights together. That is how we got Jim Crow.

 

[NatMorton]

Well the rights of a woman are not bound by their residence but by their citizenship as an American.

Sorry, that statement is just not accurate and is in direct conflict with Roe itself. It's rarely cast this way, but it's entirely correct to say that Roe defines a flexible period of time when states may infringe on "the rights of woman," and within that period does not mandate when that infringement may legally begin.

So yes, a woman in Massachusetts cannot have her right to privacy infringed upon until late in the third trimester. In Ohio maybe it could be after the second trimester. In Arkansas it could be right after the first trimester; I don't know whether these are actually the laws in each of those states, but I trust you get my point. Roe does not impose a uniform standard after the first trimester, so when a woman loses her right to abortion on demand is in fact dependent on where in the country she lives.

 

[Vadinho]

Sorry, that statement is just not accurate and is in direct conflict with Roe itself. It's rarely cast this way, but it's entirely correct to say that Roe defines a flexible period of time when states may infringe on "the rights of woman," and within that period does not mandate when that infringement may legally begin.

So yes, a woman in Massachusetts cannot have her right to privacy infringed upon until late in the third trimester. In Ohio maybe it could be after the second trimester. In Arkansas it could be right after the first trimester; I don't know whether these are actually the laws in each of those states, but I trust you get my point. Roe does not impose a uniform standard after the first trimester, so when a woman loses her right to abortion on demand is in fact dependent on where in the country she lives.

I have not read it in a long, long time. Do you have the wording that defined viability from Roe?

 

[NWRatCon]

Madison made an argument against the national bank that is consistent with originalism. By originalism I mean the reasonable public meaning of the text, clause, sentence, etcetera, near the time the law was passed/ratified. Jefferson advocated for a methodology also consistent with originalism.
....

I disagree with your premise. Madison, post-ratification, changed his view of the powers of the Constitution under the influence of Jefferson. He made a series of "pronouncements" that were at odds with the arguments that he had put forth in the Federalist Papers. Even he was not a true "originalist". That has always been my objection to the rubric. From the outset, even contemporary views of the Constitution were changing and were not uniform. While study of contemporary understandings of the language are instructive, they are not dispositive. I do agree, however, with your particular approach to originalism - "By originalism I mean the reasonable public meaning of the text, clause, sentence, etcetera, near the time the law was passed/ratified" - but the exercise can become mired in contradictory information and ultimately become less informed than a plain reading of the text.

 

[Vadinho]

I disagree with your premise. Madison, post-ratification, changed his view of the powers of the Constitution under the influence of Jefferson. He made a series of "pronouncements" that were at odds with the arguments that he had put forth in the Federalist Papers. Even he was not a true "originalist". That has always been my objection to the rubric. From the outset, even contemporary views of the Constitution were changing and were not uniform. While study of contemporary understandings of the language are instructive, they are not dispositive. I do agree, however, with your particular approach to originalism - "By originalism I mean the reasonable public meaning of the text, clause, sentence, etcetera, near the time the law was passed/ratified" - but the exercise can become mired in contradictory information and ultimately become less informed than a plain reading of the text.

Herein lies the problem which Marshall fixed in Marbury. Who is the ultimate arbiter of the law? Jefferson did not agree with Marshall. Madison and Hamilton became political foes. Washington and Jefferson were at odds. Adams was at odds with Jefferson. The rest of the 55 had all sorts of opinions. Who determines who represents the true intent? The Federalist Papers? Written by three of them, not necessarily agreed upon by the other 52 who were at the convention. What did a word mean in 1790? Which dictionary is the binding one? Which meaning within each word applies? What about the male pronouns all across the documents? Does the presence of a male pronoun mean that every single time it occurred it never included women setting up a massive amendment process to de-gender every instance of the male pronouns? Sorry but wise courts moved ahead over time to create our current legal framework. Its called progress and if someone wants us to return to 1790, they are going to be rudely awakened when the court is packed to make them irrelevant.

 

[NatMorton]

I have not read it in a long, long time. Do you have the wording that defined viability from Roe?

I'm also pulling from memory, but I don't think Roe established viability as the standard, does it? Thought it was post first trimester.

Regardless, what standard they chose is not the issue. That they chose (and imposed) any standard is.

 

[Vadinho]

I'm also pulling from memory, but I don't think Roe established viability as the standard, does it? Thought it was post first trimester.

Regardless, what standard they chose is not the issue. That they chose (and imposed) any standard is.

Well they had to do it or they would have never accepted abortion as a right since without that line in the sand, they would have made murder legal. They did not do that or at least they refused to define when a fetus becomes a human being. Leaving it to states would make Roe meaningless.

 

[mrjurrs]

“No reason D’s can’t do what I suggested they may attempt” is a reference to D’s doing or attempting to do what exactly?

Perhaps you can return to your comment for the reference.

 

[mrjurrs]

That is a good question. I would lean toward the writing date. Fortunately, it doesn't happen very often that two centuries go by between start and finish. It's also lucky that the amendment is so simple: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”

For more on the story: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxvii/interps/165

Really? What was compensation in 1792? It most definitely did not include healthcare insurance.

 

[NWRatCon]

In your example, citing the 9th as the rationale for asserting marriage is a Constitutional right would be an unqualified act of judicial activism.
...
shortened for content.

I've been trying to unravel this post, and have failed. Although well-written, it is ultimately a circular argument. "The 9th's specific purpose is not as a utility to fabricate new constitutional rights. Its purpose is to assert what is not constitutional, and that's everything that's not enumerated elsewhere the Constitution." That, frankly, doesn't follow, as the 9th Amendment was a contemporary Amendment which was woven into the fabric of the document itself. Where I think your analysis goes off track is equating "powers" (or authorities) with reservation of "rights" (or limitations). They are not the same thing, and, in fact, are oppositional and operate at the same time. An enumerated or unenumerated right does not negate an authority, and vice versa. They work in conjunction - or disjunction - to mediate the exercise of authority.

I agree with the premise that "originalism is not literalism" - but that is only one view of the approach, and maybe not even the majoritarian view of adherents, as many will argue that divining the original intent obviates further discussion. And I don't disagree that some of my examples constitute judicial activism, but that does not preclude them from being originalist at the same time, which was precisely my point. Justice Scalia was one of the most activist Justices to ever occupy that bench, and Alito is even more so. I believe Barrett will leave him in the dust, as she eschews precedent altogether (being an originalism literalist).

The entire exercise of interpretation requires a great deal of balancing of interests and intents. Thus I violently disagree with your assertions that "your interpretation of the 9th would give any set of justices the power to pluck any new 'right' out of the ether and declare it 'Constitutional.'" and that the only process for altering the Constitution is amendment - as inapposite. A "natural rights" approach, which I think we all acknowledge motivated the majority of the framers, assumes a capacious set of rights possessed of the people individually and collectively. ANY government instituted by them will, of necessity, impinge upon those "rights" - but is the trade off for the enforcement of those rights on their behalf, and of regulation of society as a whole for the benefit of all. So, the Ninth Amendment is merely the expression of a truism in this context.

I believe that the playing field is much larger than you perceive. The Constitution is a roadmap of the interaction between the various parties - governments and individuals, rights and authorities. It is not the ground itself, merely a representation of it. That is why I opined that both the General Welfare clause and the 9th Amendment are far more capacious than you (and many) imagine. Recognizing an unenumerated right is not an act of judicial prestidigitation, it is a recognition of a heretofore unarticulated understanding that is brought forth by circumstances. In other words, not invented but recognized. Like a virus, it may just have been previously imperceptible, but had existed there from the outset. As circumstances and advancement of understanding illuminated them, they became visible and concrete.

I'll put it another way - Does a "right" to travel exist for individuals? Does a "right" to procreation? to marriage? to bodily autonomy? to vote? If you believe so (as I do), then the Ninth Amendment has significant substance, because none is explicitly enumerated in the document proper.

 

[Vadinho]

I've been trying to unravel this post, and have failed. Although well-written, it is ultimately a circular argument. "The 9th's specific purpose is not as a utility to fabricate new constitutional rights. Its purpose is to assert what is not constitutional, and that's everything that's not enumerated elsewhere the Constitution." That, frankly, doesn't follow, as the 9th Amendment was a contemporary Amendment which was woven into the fabric of the document itself. Where I think your analysis goes off track is equating "powers" (or authorities) with reservation of "rights" (or limitations). They are not the same thing, and, in fact, are oppositional and operate at the same time. An enumerated or unenumerated right does not negate an authority, and vice versa. They work in conjunction - or disjunction - to mediate the exercise of authority.

I agree with the premise that "originalism is not literalism" - but that is only one view of the approach, and maybe not even the majoritarian view of adherents, as many will argue that divining the original intent obviates further discussion. And I don't disagree that some of my examples constitute judicial activism, but that does not preclude them from being originalist at the same time, which was precisely my point. Justice Scalia was one of the most activist Justices to ever occupy that bench, and Alito is even more so. I believe Barrett will leave him in the dust, as she eschews precedent altogether (being an originalism literalist).

The entire exercise of interpretation requires a great deal of balancing of interests and intents. Thus I violently disagree with your assertions that "your interpretation of the 9th would give any set of justices the power to pluck any new 'right' out of the ether and declare it 'Constitutional.'" and that the only process for altering the Constitution is amendment - as inapposite. A "natural rights" approach, which I think we all acknowledge motivated the majority of the framers, assumes a capacious set of rights possessed of the people individually and collectively. ANY government instituted by them will, of necessity, impinge upon those "rights" - but is the trade off for the enforcement of those rights on their behalf, and of regulation of society as a whole for the benefit of all. So, the Ninth Amendment is merely the expression of a truism in this context.

I believe that the playing field is much larger than you perceive. The Constitution is a roadmap of the interaction between the various parties - governments and individuals, rights and authorities. It is not the ground itself, merely a representation of it. That is why I opined that both the General Welfare clause and the 9th Amendment are far more capacious than you (and many) imagine. Recognizing an unenumerated right is not an act of judicial prestidigitation, it is a recognition of a heretofore unarticulated understanding that is brought forth by circumstances. In other words, not invented but recognized. Like a virus, it may just have been previously imperceptible, but had existed there from the outset. As circumstances and advancement of understanding illuminated them, they became visible and concrete.

I'll put it another way - Does a "right" to travel exist for individuals? Does a "right" to procreation? to marriage? to bodily autonomy? to vote? If you believe so (as I do), then the Ninth Amendment has significant substance, because none is explicitly enumerated in the document proper.

So the 9th merely states that we have more rights then are expressly protected by the constitution, that is all it says. A new right recognized by the courts can emerge out of that pool of rights we retain outside of the constitution. Those rights can either be added via an amendment or by the courts, both are valid paths to protecting new rights. As you stated, the idea of natural rights was dominant at the time in philosophy and within the intellectual community. The BOR simply covered those rights the founders determined needed extra protection much to the dismay of some of the founders who thought them unnecessary. But they eventually agreed to add the BOR and codify rights to prevent future governments from abusing the vagueness of the main body of the constitution to strip us of very critical rights. They never considered the topic closed and anticipated new rights to be protected in the future. Think of the superset of natural rights to be fluid not static. There was never a complete list of all the natural rights we all retain as human beings. Neither Locke or Hume or anyone else fully developed the idea beyond a few debatable concepts. The founders were heavily influenced by these men and did their best to create a framework that could move ahead in the future.

 

[NWRatCon]

Sorry, but in attempting to refute my point you've only demonstrated its correctness.

As you correctly point out, the court established a legal threshold moment between "potential life" and "prenatal life." Something that is "potential" is not yet in existence. A potential wage hike is not yet more money in your paycheck. A potential job offer does not mean you're employed. Potential life is not yet something that is alive, though I think the court, not talking about living cells, clearly meant "potential [human] life" being something that is not yet human.

QED: the court created a legal definition for what can be and what cannot be considered human life. That life/non-life threshold is what governs when abortion restrictions are illegal and when they can be legal, not privacy. That is why I say Roe is not about privacy, but about a legal definition of human life, no matter how the majority spun their reasoning in the written decision.

I agree that the decision is based upon the expectation of life, not its present existence. From there, however, i perceive a disconnect. Let me structure it this way: "What condition made Roe necessary?" If one takes an originalist view, I believe, Roe would not have been necessary. At the time of the adoption of the Constitution, life began at birth. It was that simple. Until a baby is born, it has no existence, no nationality, no interests - even though its potential was easily, and commonly understood. I can provide substantial case law to support that assertion, but I think we can all assume it for purposes of discussion. In that sense, I agree that your conclusion follows that the court articulated a "a legal threshold".

From that premise, though, the question that is created is, "upon what authority is the State acting in regulating or prohibiting abortion?" Once any State asserts that authority, courts are drawn in to mediating the right/authority conflict. I may not agree entirely with the way the Court reached its decision, but I cannot fault it for the necessity, because the State was intruding upon the "natural rights" of the mother. The simplest answer in Roe, I think, would have been to simply say that a State does not possess the authority to interfere with the interests of the mother, period. Strike down the law, move on. The burden, after all, is upon the imposer. But, circumstances, including medical advancements, had already intruded upon that process.

The conflict we run into, in Roe, is identifying the interests of the parties - the individual and the State. (I would have approached it, no surprise, as a Ninth Amendment issue - the right to bodily autonomy.) What is the interest of the State? How does that interest manifest in the law? How does it affect its denizens? What are their interests? Does a potential life has an articulable interest? Upon what authority does a State have an interest in prohibiting abortion? Does the law further that interest? Do medical advancements change those assessments? Whatever framework one applies, I think, the Court was faced with the necessity of working its way through that conundrum. Their approach was Solomonic. Personally, I think it is a practical conclusion, but I have to admit that its legal analysis imported some thorny problems into its solution, and which allows the current Court the opportunity to misinterpret it abysmally. Their analyses have been far more violative of the Constitution than Roe ever was.

 

[NWRatCon]

Yes, I think it does preclude the possibility of it being originalism. Not everything is binary, but this is. Either one makes an honest attempt to decide a case based on the intent of those who wrote and ratified the applicable law or one does not. Once you start looking for extra-Constitutional inspiration, you've become an activist.

For reasons I articulate elsewhere, I completely disagree. I think you have hampered your reasoning because your definitions are far too narrow - of both originalism and activism. I'm looking forward to dissecting the issues.

 

[iliveonramen]

:sigh:

Originalism is bullshit. Judges of all description look to first determine original intent, then to apply it to a question of law about which the framers could not have dreamed. The main difference is that non-originalists are honest about the fact that this takes a lot of analogizing and extrapolating, whereas originalists try to boostrap their opinions into greater credibility by pretending they can commune with Madison.






See? That's what I'm talking about. As used, "originalism" is a half-assed bootstrapping trick used by people who want to convince themselves not that they support Republican judicial picks simply because they decide cases in ways Republicans they like, but that said picks are objectively right when they do it.

A cheap bootstrapping trick; no more, no less.

Yeah, it's basically a crock of shit. It's branding so when they ram rightwing decisions that only a minority support they wave it off as calling "balls and strikes". No one believes originalism is anything other than a right wing judge. The right loves to wrap themselves in the constitution to support a lot of their obviously immoral views but no one buys that. Maybe they themselves do...cognitive dissonance purposes.