czstar
Joined 4 years ago
Joined 4 years ago
Three highly intelligent and very knowledgeable members of the Court wrote an opinion on why Roe should not be overturned. Their eloquence and reasoning are far greater than mine. You should read what they wrote to see the legal basis of their position. It was not some right made out of thin air as in your Dairy Queen example.
Now 6 members of the court who are equally intelligent and knowledgeable wrote an opinion on why Roe should be overturned. Their eloquence and reasoning are far greater than mine. I read parts of their decision. I disagree with their reasoning. Herein lies the problem.
Human language lacks mathematical precision (I’m a mathematician and not a lawyer) and so we end up in a situation where equally smart, knowledgeable people have completely different conclusions about the same set of statements. This in itself is a cause of chaos.
In what I’ve written to you I have avoided saying things like, “there is no legal basis for overturning Roe”. Clearly there is a legal basis for doing so. Clearly there is a legal basis for not doing so. What I concentrate on are the consequences for this decision. I think the unintended consequences will be dire. Personally I think the Constitution needs to be rewritten. What worked in 1800 isn’t necessarily workable in 2022 in a much larger country with a much larger population.
The Constitution says nothing about a Department of the Air Force. Should it be legal to have a Department of the Air Force? The Constitution mentions “War Department”. It says nothing about a Department of Defense. Should that be legal? Well, the courts would throw out any challenge to the constitutionality of the Department of the Air Force because of the logical deductions of the statements in the Constitution.
Repeat the process for all statements in the Constitution and after 200 years you get a vast collection of legal opinions and judgments.
EDIT: Let me be more precise. The purpose of the Court is to clarify rights. It’s job is to decide what exactly is meant by “equal protection”, “freedom of speech”, etc.
Euclidean geometry is a vast subject with many theorems. Those theorems are logical consequences of the 5 axioms of Euclidean geometry. Just 5 statements are the basis for a large number of logical consequences. Imagine then how many logical consequences are possible from the many statements of the U.S. Constitution.
There is no explicit right to an abortion stated in the U.S. Constitution but courts 50 years ago said that this healthcare procedure can’t be completely outlawed. They enshrined it as a right. It has been a right for 50 years. Now it is not. I talked with a conservative justice on a state Supreme Court many years ago. He told me that the legal basis for Roe had slowly been established by precedents over the years. He did not say whether or not he agreed with those precedents. I’m just pointing out that the expansion of the rights of women to an abortion was not without a well reasoned path. Sort like how after enough theorems one can see that then sum of the degrees of a triangle is 180 degrees.
There have been historical variations in laws between states. Slavery is the quintessential example of this and it led to the Civil War. If there is too much variation on the legal protections between the states this can lead to chaos. The Court should be in the business to equalizing rights across the nation and not diminishing them. The Court is in the process of trying to equalize the rights to guns across the nation. While I oppose the interpretation of the 2nd Amendment most people have it should be equalized across the nation. This is particularly true since travel is so much easier now than in the past.
We will soon live in a country where an act is legal in one city and a death penalty offense in another. The last time that happened we ended up in a civil war. I don’t believe we will end up with a civil war over abortion but I can see liberal states telling Texas to go ahead an secede when Texas declares their right to do so (as they have done at various times over the past 40 years).
The Court’s action is extremely divisive and I don’t think state legislatures should have to right to limit medical procedures. Let’s assume we both agree that at conception the embryo is a human being with all the accompanying rights. I don’t think state legislatures should able to force a person to risk their life to save that embryo. Should legislatures have to the right to force me to donate blood to someone or donate a kidney to save someone? I think not. Legislatures should not have the right to force women to risk their lives to save an unborn child.
We disagree strongly on this issue. We disagree on the role of the Court. There are major power imbalances with regard to the power distribution among the states. These structural problems are coming to the fore due to results like overturning abortion. Such is my view.
I hope you have a good day too. I will read any response you make but won’t respond further. I doubt you will convince me my position is wrong and I doubt I’ll convince you but it is fruitful to read other peoples’ opinions.
https://illinoislawreview.org/print/vol-2017-no-3/the-crimin...