[Admiral Beez]

Total insanity, is what this is. One judge also wrote that gay marriage and contraception should be challenged.

Of course they should. Progressives in the US went about getting their agenda all wrong, trying to use nebulous stretches of the Constitution to squeeze in topics that the Founders never intended, such as abortion and gay marriage. If Americans want those two to be enshrined into the Constitution they need to do it properly, with a Constitutional amendment. What‘s that you say, Amendments are very difficult to get…. Sure, but it’s been done eight times in the last hundred years, so it’s not impossible. And if you don’t want to pursue an amendment, then push for State and Federal laws through voting.

 

[kEiThZ]

Progressives in the US went about getting their agenda all wrong, trying to use nebulous stretches of the Constitution to squeeze in topics that the Founders never intended, such as abortion and gay marriage.

I keep seeing this. It's nonsense. There are unenumerated rights that come from the Constitution. Privacy is one of them. And that is the foundation of all these rights. This was derived by an interpretation of the 14th amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Guess what else isn't listed in their Constitution (or our Charter)? The right to marry. Can you imagine those justices arguing that all marriages are invalid because this right wasn't specifically enumerated in the Constitution?

It was understood at the time that they didn't need to list every single right explicitly. Not in the least, because if they did that, there would the presumption that if it wasn't listed it would be prohibited. The idea that rights have to be specifically enumerated in the Constitution is a rather extreme position.

Their Supreme Court is increasingly coming off like a bunch of Iranian Ayatollahs who make random laws and then pull out some justification from the Koran after.

 

[Northern Light]

Of course they should. Progressives in the US went about getting their agenda all wrong, trying to use nebulous stretches of the Constitution to squeeze in topics that the Founders never intended, such as abortion and gay marriage. If Americans want those two to be enshrined into the Constitution they need to do it properly, with a Constitutional amendment. What‘s that you say, Amendments are very difficult to get…. Sure, but it’s been done eight times in the last hundred years, so it’s not impossible. And if you don’t want to pursue an amendment, then push for State and Federal laws through voting.

The Equal Rights Amendment which was the last major attempt at a U.S. Constitutional amendment; one that would enshrine the equality of women; has never garnered enough State support to pass.

* (the 27th Amendment was ratified later, but I would argue is largely inconsequential)

It passed Congress in 1972..............so in 50 years, they've been unable to get the consent of 39 states to enshrine the equality of women........

Somehow, I think gay rights and abortion are not likely to be any easier to pass. (sadly)

 

[Admiral Beez]

I keep seeing this. It's nonsense. There are unenumerated rights that come from the Constitution. Privacy is one of them. And that is the foundation of all these rights. This was derived by an interpretation of the 14th amendment:



Guess what else isn't listed in their Constitution (or our Charter)? The right to marry. Can you imagine those justices arguing that all marriages are invalid because this right wasn't specifically enumerated in the Constitution?

It was understood at the time that they didn't need to list every single right explicitly. Not in the least, because if they did that, there would the presumption that if it wasn't listed it would be prohibited. The idea that rights have to be specifically enumerated in the Constitution is a rather extreme position.

Their Supreme Court is increasingly coming off like a bunch of Iranian Ayatollahs who make random laws and then pull out some justification from the Koran after.

I didn’t see the word privacy in there.

 

[kEiThZ]

I didn’t see the word privacy in there.

Correct. It's not in there. That's what an unenumerated right is. It is derived from an understanding of other enumerated rights.

Our Charter doesn't explicitly grant a right to privacy either. Do you think it'd be okay for our Supreme Court to start taking away rights based on that?

 

[Bjays92]

Correct. It's not in there. That's what an unenumerated right is. It is derived from an understanding of other enumerated rights.

Our Charter doesn't explicitly grant a right to privacy either. Do you think it'd be okay for our Supreme Court to start taking away rights based on that?

Ok? Absolutely not. A technical loophole that could be used to justify such rulings if the court felt like going that direction? Most definitely.

Whether it's actually acceptable or not is irrelevant, it's about closing a constitutional loophole. Unfortunately in the current political climate that would be impossible and as a result you will continue to see the US slide backwards into authoritarianism.

Just wait until a republican controlled Congress attempts to pass a national ban on abortion, something this ruling explicitly opens the door to.

 

[DSC]

Of course they should. Progressives in the US went about getting their agenda all wrong, trying to use nebulous stretches of the Constitution to squeeze in topics that the Founders never intended, such as abortion and gay marriage. If Americans want those two to be enshrined into the Constitution they need to do it properly, with a Constitutional amendment. What‘s that you say, Amendments are very difficult to get…. Sure, but it’s been done eight times in the last hundred years, so it’s not impossible. And if you don’t want to pursue an amendment, then push for State and Federal laws through voting.

To quote Admiral Beez in another thread only last week ...." I used to be an sanctimonious, obnoxious dick on this forum as well. But that was decades ago, back in the ezboard days."

 

[Admiral Beez]

To quote Admiral Beez in another thread…."

I do sound good, but what’s your beef with what I‘ve written? If progressive Americans want to have their wants and perceived rights protected the way to get it is through amending the Constitution and/or through voting in politicians who will enact State and Federal legislation to protect those wants and rights, not by finding a temporary, albeit fifty year, workaround at the Supreme Court.

The Supreme Court has not made abortion illegal. They’ve pushed it down to the people and their elected representatives. So, if Americans want abortion rights the people need to vote accordingly. And while they’re at it, vote for representatives that will push for a modified ERA that enshrines LGBT equality and protects reproduction rights.

Equal Rights Amendment - Wikipedia

en.wikipedia.org

 

[Northern Light]

Ok? Absolutely not. A technical loophole that could be used to justify such rulings if the court felt like going that direction? Most definitely.

Whether it's actually acceptable or not is irrelevant, it's about closing a constitutional loophole. Unfortunately in the current political climate that would be impossible and as a result you will continue to see the US slide backwards into authoritarianism.

Just wait until a republican controlled Congress attempts to pass a national ban on abortion, something this ruling explicitly opens the door to.

I'm not convinced that unenumerated' rights are 'loopholes'.

A constitution, any constitution is meant as a set of very high level principles by which a nation/institution is governed.
They/It are never meant to be prescriptive documents listing each and every right or freedom, any more than they micromanage the affairs of state.

A high level principle is equality before and under the law.

But that can mean a host of different things, for men and women (or minorities for that matter).......the constitution says nothing about equal pay for work of equal value. Yet, that can be reasonably inferred as being implicit.
That simple statement doesn't define the limits of equality by age (we don't let toddlers vote or drive).........clearly there remains an element open to legislative discretion, with judicial oversight.
Must the constitution spell out the driving age, the age of consent, the age at which one may purchase alcohol?. It turns out its easier and arguably better to leave the legislative details to governments of the day; and if someone feels aggrieved by what the legislature has put in place, let the Court audit it against the
principles enshrined in the constitution.

A constitution that micro manages is its own type of problem. It has its appeal (removes some ambiguity/judicial discretion); but it also makes it hard to adapt to changing times and circumstances.

Also, a prescriptive, expansive constitution as you might envision it could easily run into the thousands of pages.

****

Provided that one's highest Court is held in high esteem by the broader public, affording deference to such a court in interpretation of the constitution's principles is arguably both wise and infinitely practical.
It also allows a Court to revisit previous decisions when society has evolved/changed, as our court did with MAID (Medical Assistance in Dying) .

****

Clearly there is a problem in the U.S. case in that the Court is not held in high esteem in general; neither by the political right, nor the left; its credibility has been teetering for years with highly questionable decisions that have
very clearly been on partisan/ideological lines.

The Court in the U.S., in recent years has also been entirely tone-deaf on where the public sentiment lay.

Our Supreme Court has been very much willing to lead public opinion, but has also been mindful of it.

I do get that that could change; that one has to be careful in appointing judges, that one has to have sound principles surrounding courts in general; and that politicians and the media need to be careful not to bash institutions
and their credibility simply because they disagree with one ruling or decision or law.

But I don't think you avoid peril simply by codifying everything.

 

[Admiral Beez]

Our Charter doesn't explicitly grant a right to privacy either. Do you think it'd be okay for our Supreme Court to start taking away rights based on that?

No, and I’d vote accordingly to best reverse any such move. That’s the disconnect in the US, they either abstain from voting or vote against their interest. Even though he campaigned to stack the court with Lifers; women either voted for Trump or didn’t vote at all.

I’m not making a value judgement on what’s okay or not okay. Instead I’m suggesting how America got to this point and what they should do next. It may very well be that most Americans through either abstaining or voting GOP are demonstrably fine with an abortion ban, or just as likely not concerned either way and vote on other issues, like crime or the economy.

 

[PinkLucy]

No, and I’d vote accordingly to best reverse any such move. That’s the disconnect in the US, they either abstain from voting or vote against their interest. Even though he campaigned to stack the court with Lifers; women either voted for Trump or didn’t vote at all.

I’m not making a value judgement on what’s okay or not okay. Instead I’m suggesting how America got to this point and what they should do next. It may very well be that most Americans through either abstaining or voting GOP are demonstrably fine with an abortion ban, or just as likely not concerned either way and vote on other issues, like crime or the economy.

“Women” didn’t vote as a bloc for Trump. Let’s look at the women who did. A very different demographic from the women who didn’t. Have you listened to the Women for Trump reps? They most certainly don’t represent 50% of the population.

 

[Admiral Beez]

“Women” didn’t vote as a bloc for Trump. Let’s look at the women who did. A very different demographic from the women who didn’t.

A good and fair point. 82% of the non-white women (disproportionately abortion recipients) who voted, voted for Hilary in 2016. Considering the changing demographics and the great replacement conspiracy theory, I wonder if American conservatives really want so many more Black and Latino babies being born?

 

[kEiThZ]

No, and I’d vote accordingly to best reverse any such move. That’s the disconnect in the US, they either abstain from voting or vote against their interest. Even though he campaigned to stack the court with Lifers; women either voted for Trump or didn’t vote at all.

I’m not making a value judgement on what’s okay or not okay. Instead I’m suggesting how America got to this point and what they should do next.

That's fair. I was just pointing out the idea that derived rights shouldn't be respected or considered settled is a rather impractical and extreme position.

On the politics of it, I agree. I was in the US in the run-up to the 2016 election and for the 2018 election. I was pretty surprised by the way Americans around me discussed politics. They talked about it largely like a team sport with very little consideration of the issues. It was jarring, given that plenty of the folks around me then went to Ivy League schools or their service academies for undergrad. They were all extremely passionate about defending democracy and fundamental rights abroad. But couldn't make the connection that their democracy at home was under threat. Most shocking was the really progressive folks who thought it was all fine to "Burn it all down." I always wonder what they must be thinking now.

 

[lenaitch]

Many folks are conflating constitutions and constitutional law with substantive law. Constitutions and other 'foundational laws', of necessity are written in broad, high-level, aspirational terms and typically created/amended by a distinct (from other lawmaking) complex, consensus-driven process. They are difficult to change for good reason. They seldom, if ever, create offences; no one in Canada can be charged with breaking a constitutional law. In Canada, they are the template into which all other laws must fit. Substantive law is created by the government in power at the time, and can be relatively easily changed by the next government (or themselves for that matter).

As good and as researched as any law is, they are words, and words are subject to interpretation. That's what the courts, notably appellate level courts - not the folks who wrote the law - get to do, and they interpret it against the Constitution (Charter). Under the Common Law system, they consider other rulings, other similar interpretations, perhaps other similar jurisdictions, nd record their decision in a very detailed, open manner for other courts to understand. Regardless, at some point, you run out of courts to interpret. Some level has to have the final say. There has been consistent consensus in our system that the Charter is to be considered a 'living document'; that it be interpreted in terms that are contemporary to the times. There is no such consensus in the US. There is a faction that feels they should party like it's 1787, which I guess is cool so longer as you are a land-owning white male.

I can't imagine any foundational law that could hope to capture and specifically apply to every single human interaction, and remain contemporary, without ending up being a massive, convoluted mess that was ever-changing; the antithesis of a stable foundational law.

 

[Admiral Beez]

The red neck states are going to have their work cut out trying block medical abortions, where more than 60% of abortions occur today.

https://www.nytimes.com/2022/06/26/...ation-pills.html?referringSource=articleShare

Here‘s what Biden needs to do.
1) nationwide, free mail order birth control pills supplied by the federal government, requiring only a telephone consultation with a federally-appointed doctor.
2) same, nationwide free mail order abortion pills. Make interfering with USPS a higher federal crime.
3) both above linked with federally funded maternity leave and daycare programs (to allow more women to keep their kids)

As for funding the above? Start by taxing wealth rather than only income. Also consider a national VAT.

To get this done the Dems may need to scrap the filibuster, but they’re likely to lose both Congress and the White House in Nov 2024, so get moving now. If given the new uproar the Dems still lose the House this November then they and progressive Americans have clearly lost the heart of the voters.