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This explains one of the oddest characteristics of originalism: for a method aiming for “restraint” in its interpretation of the law, it is opportunistic. Originalism is deployed when it works to achieve particular ends, but jettisoned when it would yield something the Justices think is too odd.
Some of the justices seemed to understand the limits and inherent hypocrisy of this method of interpretation.
To quote Justice Antonin Scalia:
It would probably be crazy to say women could not sit on courts today. So it is unlikely that the court would apply that history, even if Justice Alito is willing to go back to the 13th Century to dispose of Roe.
What SNL Got Right About What’s Wrong With Alito’s Leaked Opinion
While Scalia said that tongue in cheek, there is no one understanding of what constitutes originalism. Some of the earlier forms of originalism tried to read too much into legislative intent by getting into the minds of the framers of a particular piece of law, but this has been disregarded by most today as different framers often have different ideas of what something means. A better and more common approach tries to look to what the common understanding of a term/word was to the people at the time that a law was enacted. On this point, dictionaries of the day can be particularly helpful.
Then you have textualism, which is a subset of originalism.
Still, I think many people misunderstand originalism and, thus, misfire on their criticism of the concept. One would not, for instance, look to how women were treated under English common law from the 1300s to adjudicate women's rights today on, say, the issue of voting rights as we have an actual amendment that grants women the right to vote; that women were not granted the right to vote under early English common law is of no consequence as we've legislated beyond that. Similarly, one wouldn't look to early English common law in general to understand how we give protections to certain classes of people as we have more recently legislated on issues of increasing equality, to include the 14th Amendment and various pieces of civil rights legislation. For those issues, you look to the most relevant law and attempt to derive its original meaning. The only time that earlier common law may be relevant to more recently adopted legislation, etc., is if the more recently adopted legislation was based on an understanding of earlier legal concepts.
Perhaps some folks do not realize why the 14th Amendment was passed? (Personally I find this difficult to believe)
The Civil War ended on May 9, 1865. Just more than three years later, on July 9, 1868, the 14th Amendment to the U.S. Constitution was passed. This amendment and the 13th and 15th amendments were a part of the Reconstruction Era of the United States, which focused on civil rights and rebuilding the war-torn nation. The 14th Amendment states that every person born or naturalized in America is a citizen of the country as well as their state of residence.
Some southern states began actively passing laws that restricted the rights of former slaves after the Civil War, and Congress responded with the 14th Amendment, designed to place limits on states' power as well as protect civil rights. To be readmitted to the Union after the Civil War, southern states had to ratify the 14th Amendment. Initially, Native Americans were not granted citizenship by this amendment because they were under the jurisdiction of tribal laws. It was not until 1924 that Congress passed the Indian Citizenship Act, which granted Native Americans citizenship rights as well.
What's your point? In relevant part, 14th Amendment's limits on states power prevent states from denying people of life, liberty or property without providing for due process of law. It is not a blanket limit on state power, and per the explicit terms of the amendment states can even get around the bulk of the limitations imposed on them if they provide due process.
Where some believe the Court went wrong in Roe, etc., is by relying on the constitutionally infirm creation of so-called substantive due process, which in essence means that some rights are so important that they can never be taken away (either past a certain point or at all). But that is wholly inconsistent with the reading of the amendment.
My point, beyond the simply stated 1st sentence ‘that I find it difficult to believe that some folks do not realize why the 14th Amendment was passed’, is this:
Any discussion involving the history of the 14th Amendment, & its relevance to civil & human rights with no mention of the American Civil War is an egregious omission.
The term “substantive due process” was first used in 1930s legal casebooks, & by 1952 had been mentioned twice in SCOTUS opinions. It has always been used to signify a particular political attitude toward judicial revue under the two due process clauses.
Good lord, are you kidding? Maybe it's only the doctor who gives the abortion.
It’s a meme.
PP copied a meme.
“A popular Instagram post attempts to shed light on a controversial abortion law approved in Alabama last year, but it doesn’t get all the facts right.
“In Iran if a 12-year-old girl is raped and impregnated by her father, she must carry the baby to term, or be thrown in prison for life. Wait, sorry, no. That’s Alabama,” the post reads.
Alabama’s abortion law — known as the Alabama Human Life Protection Act — would indeed ban most abortions. It was signed by Republican Gov. Kay Ivey on May 15, 2019.
But the law is not currently in effect, an important detail the social media post leaves out.”
Ending a life without the consent of that life is murder.
An embryo can't give consent. But if they could and upon learning how evil, hateful and loveless the world is, they would likely say, no thanks, I don't want to become a part of such a world.
An embryo can't give consent. But if they could and upon learning how evil, hateful and loveless the world is, they would likely say, no thanks, I don't want to become a part of such a world.
Neither can 2 year old babies. You are doing just fine and are alive.
But why should the doctor in that case face any consequences? This is a mad mad mad world.
Because Oklahoma's new anti-abortion law says doctors who give abortions are subject to 10 years in prison and a $100,000 fine. The only exception is if needed to save life of mother. Anti-abortion groups, such as Oklahomans For Life, also want punishment for women, who get abortions from abortion inducing drugs. And go yet further by demanding criminalization of the parents, grandparents, friends, boyfriends, and pimps, who agitate, coerce, manipulate, or provide funds and material support for abortion. There is a terrific amount of vindictiveness in these far right Christian anti-abortion groups. As you said this is a mad, mad, mad, world.
Last edited by StillwaterTownie; 05-10-2022 at 08:56 PM..
Due to reported rape. In other words, as far as you think you know.
There are many women in controlling and abusive relationships, marriage, or in other situations where they’ve been coerced, threatened or otherwise strong armed into having sex by men who give less than two crabs about the aftermath. A lot of those situations will go unreported as rape.
In a perfect world, all women will be in living committed relationships where they have unfettered access to birth control and where their partner is kind and loving and proactive in her reproductive health and choices.
But this is the real world, where your black and white pedantic “convenience” nonsense doesn’t apply.
Parenting a living breathing child is not an inconvenience. It’s the greatest responsibility one can undertake in their lifetime. I want all children to be wanted and brought into the world in a stable environment, not into a household of pain and poverty, substance abuse and violence.
Let women make their own decisions about this.. Too much domestic violence and child abuse out there for anyone to prejudge anyone else’s situation.
Agree. The fundamental right to privacy has a foundation in American history, legal traditions, & practices. An individual’s right to privacy existed at the time the nation was founded, & at the time the 14th Amendment was added to the Constitution in 1868.
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