scotus

An Originalist Argument For Abortion Rights

The constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?

Chief Justice John Marshall, in Marbury v. Madison

Originalism, broadly speaking, is that theory of justice which holds that the intention of the writers of the law is the key to its interpretation; and that, as laws were written to be read, it’s not some obscure mindreading process but rather “what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” (Justice O. W. Holmes)

This is the doctrine of interpretation used by Justices Thomas, Kavanaugh, and Gorsuch, and to which they habitually adhere in almost all of their legal opinions. As they represent that portion of the Court which may possibly be swayed by legal argument, it is with respect to their interpretation that any statutory or argumentary replacement for Roe v. Wade ought practicably be drafted.

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While SCOTUS Considers Abortion

EDITORIAL

While SCOTUS considers abortion, permit me to suggest that it’s past time we do too.

I’m not talking about trumpeting loudly your positions and the hills you’ll die on. I said “consider” and I mean it. Either it’s important or it’s not; and if it’s important, it demands your attention and honest thought — however painful thinking might be, much less honesty.

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Texas Abortion Law: This Is A Good Thing

Even its proponents will often be compelled to admit: This is a strange type of law.

There’s precedent for granting bounties to private citizens, and it’s very probably lawful to use the civil courts instead of criminal for enforcement in this or a similar fashion. Even if it’s not, centering a counter-argument on this point is an error anyway. Those who invented the bill in the first place are attempting to choose the ground for the next fight over what is effectively a “heartbeat law” on abortion.

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The CDC Isn’t Understaffed, And Other Myths

It’s social media; I should just let it go.  People hear something that supports their biases so they Share it without checking, and it becomes common wisdom.  Sometimes it’s gets to a point where everyone knows is true so it’s no longer even discussed, and if you argue you’re nuts.

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Kavanaugh Is Not The Great Satan

It’s been 24 hours since Brett Kavanaugh was nominated to replace Justice Kennedy on the Supreme Court.  Since then I’ve seen him described as a religious ideologue, an ultra-conservative, and (my favorite) a sign that “The American Experiment Is Over”.

This isn’t a slight misstatement, a matter of nuance or a bending of the truth.  It’s laughably, ludicrously wrong.

Look, I get it:  Donald Trump nominated this guy, so he must be evil.  Given some of this president’s other nominees (though hardly all), that’s understandable, the more so if we also consider Mr. Trump’s high scores on the Supervillain Index.  (No cape, and his monologues (more…)