Capacious, Ordered Liberty

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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38 Responses

  1. DensityDuck
    Ignored
    says:

    “By ending the relevant historical inquiry in 1868, it becomes much easier for a revanchist judge to keep a description of what our rights really are today to a recapitulated version of our country’s Bad Old Days.”

    Sick burn bro, but it also is worth pointing out that there were multiple actual Constitutional Amendments required for it to be true that Everyone Has The Right To Vote. Like, yeah, “times change, people change” but the particular change you’re talking about involved some pretty serious modifications to the governing documents of the country, it wasn’t just an emanation from the penumbra.Report

  2. Chip Daniels
    Ignored
    says:

    This is a terrific and well reasoned piece but I reject the premise.
    The premise being that Alito is working from a deeply held sincere set of principles which led him to this.

    As we see from other decisions like Heller, Alito is perfectly happy to vastly expand unenumerayed rights beyond their original meaning whenever he feels like it.

    The real logic at work in Dobbs is “Because we can” and nothing more.Report

  3. Jaybird
    Ignored
    says:

    I don’t like the whole issue of looking at something that says something in plain English and pretending it says something else.

    The 9th is a fine, fine Amendment and it contains a very good rule:
    “Just because you don’t see it enumerated doesn’t mean it doesn’t exist so don’t use the lack of enumeration as an argument for it not existing. Use a different argument if you must but you can’t use ‘it doesn’t enumerate it!’ as an argument in and of itself.”

    Do women have a right to abortion?
    Well… maybe they do. Maybe they don’t. But the fact that the constitution doesn’t mention it doesn’t mean diddly.

    Do people have a right to privacy?
    Well… maybe they do. Maybe they don’t. But the fact that the constitution doesn’t mention it doesn’t mean diddly.

    But there’s so much, sigh, “lawyering” that twists words beyond plain language and everything gets topsy turvy and, after a few iterations, we find ourselves wondering how in the hell we got here.Report

    • DensityDuck in reply to Jaybird
      Ignored
      says:

      “Do people have a right to privacy?”

      On the one hand, the Fourth Amendment.

      On the other hand…like I said, that was an Amendment.Report

    • Brandon Berg in reply to Jaybird
      Ignored
      says:

      Here’s the deal with the 9th and 10th Amendments. The Constitution gives Congress a list of specifically enumerated powers, and only those powers. Everything not permitted to Congress is forbidden. Some people wanted to add a Bill of Rights to make it extra clear that the Federal Government wasn’t allowed to do certain things. Other people disagreed, saying a) why do we need this when these aren’t on the list of things that the Federal Government is allowed to do anyway, and b) if we make a list of things the Feds aren’t allowed to do, they’ll think they can do anything not on that list.

      The 9th and 10th Amendments were the compromise solution. We have a Bill of Rights to make it extra clear that the Feds couldn’t do certain things, and we also have two other amendments to remind everyone that Congress can’t assume that something is permitted just because the Bill of Rights doesn’t forbid it—it still has to stick to the list of powers in Article I, Section 8.

      When the 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” how do we know which powers are reserved to the States and which to the people? That’s for the states and people to work out. It’s just telling Congress to keep its hands off. The whole point of the Constitution was to establish powers and limitations of the Federal Government in order to better manage relations between the states, not to micromanage state governments.

      The 14th Amendment changed that by putting additional restrictions on the states, but they were unfortunately rather vague about what those restrictions were.Report

      • Jaybird in reply to Brandon Berg
        Ignored
        says:

        I dig that they’re a compromise but there isn’t even an effort to put together a theory that could hold them in one’s head at the same time as, say, the 3rd Amendment.

        We just jump automatically to “inkblot” and start explaining how the 3rd Amendment doesn’t necessarily mean that the Coast Guard can’t quarter in your house, just the Army can’t, because they specifically say “soldier”.Report

    • Philip H in reply to Jaybird
      Ignored
      says:

      Do women have a right to abortion?
      Well… maybe they do. Maybe they don’t. But the fact that the constitution doesn’t mention it doesn’t mean diddly.

      You – and Alito, and most of the conservative commenters here – are STILL asking the wrong question. It’s not about a woman’s right to an abortion, it’s about a woman’s right to be in command of her own life and her own decisions. As Density alluded above, woman had to GIVEN the right to vote by Amendment of the Constitution (after essentially engaging in a multi-year cold – medium warm war with their own government to get it). Women were legally forbidden to get a credit card or take out a loan in their own names until the late 1960’s to early 1970’s.
      Women are STILL not fully equal in the US< and this decision will roll that back.Report

      • Jaybird in reply to Philip H
        Ignored
        says:

        I am a firm believer in a right to privacy, myself. Like, the government should not have a reach that extends half as far as it does.

        You wouldn’t believe who disagrees with that sort of thing, though.

        Anyway, the law is, itself, a reflection of the culture underneath. We’re going to find ourselves with a surprisingly accurate reflection after the game is iterated enough times. But, like, the mirror is bigger than just the nice corners where the smart people look.Report

        • Burt Likko in reply to Jaybird
          Ignored
          says:

          Everyone is a firm believer in the right to privacy when the privacy interest is something they care about, when it’s their own privacy at stake.

          Do you believe in my privacy interests, now that’s a different question.Report

        • Pinky in reply to Jaybird
          Ignored
          says:

          Even enumerated rights have limits, so it’s no surprise that unenumerated ones would too. The term “privacy” covers a lot of ground. There are a lot of steps from an implication of privacy to a right to privacy, to a right to marital privacy, to that right extending to cover abortion.Report

          • Jaybird in reply to Pinky
            Ignored
            says:

            I’m fine with them having limits!

            I’m against them being argued against by having people point out “Well, they’re not in the Constitution!”Report

            • Pinky in reply to Jaybird
              Ignored
              says:

              Is that really happening though? Typically the right doesn’t mind unenumerated rights and the left doesn’t bother checking the Constitution.Report

              • Jaybird in reply to Pinky
                Ignored
                says:

                Yeah, nobody reads the Constitution.

                It’s too bad.

                There’s some good stuff in there.Report

              • Philip H in reply to Pinky
                Ignored
                says:

                Typically the right doesn’t mind unenumerated rights

                UM . . . no. The right objected strenuously to same sex marriage. the right objected strenuously to legalizing contraception. The right still – and apparently with Supreme Court backing, still objects to women having the right to make their own medical decisions.

                The Left does check the constitution. Quite regularly. Which is why, for instance, we keep noting the right to bear arms being conditioned on the existence of and membership a well regulated militia.Report

              • Pinky in reply to Philip H
                Ignored
                says:

                I’m talking about rights of the people which are unenumerated in the Constitution. You’re talking about judicial decisions that claimed Constitutional grounding that wasn’t there. Note that in the three cases you’re talking about, the Court established a new…you know what, just reread this article. Burt explains the difference.Report

              • Jaybird in reply to Pinky
                Ignored
                says:

                Marriage is a couple of sets of things.

                It’s a handful of rights.
                It’s a handful of privileges extended.

                Denial of the privileges extended reached the point where it became inexcusable because precious few disagreed about the rights.Report

              • Philip H in reply to Pinky
                Ignored
                says:

                The right of people to freely marry is just a judicial decision that claims Constitutional grounding that isn’t there? Is not in your view an unenumerated right?

                Wow.

                Just wow.Report

              • Pinky in reply to Philip H
                Ignored
                says:

                I’m sympathetic to arguments that make marriage strictly religious, rather than religious and secular. But that aside, of course you don’t have a right to marry anyone you want.Report

              • Philip H in reply to Pinky
                Ignored
                says:

                Do women have a right to body autonomy? Men do in the US, though its not enumerated.Report

  4. Chris
    Ignored
    says:

    I remember reading an article in a southern magazine from 1870 or so, arguing that the abolitionist movement, and the movement to grant rights to former slaves, would soon inspire women to seek rights as well. I’m reminded of that anytime anyone suggests that we should decide anything about women’s rights based on ideas from a time before that.Report

  5. LeeEsq
    Ignored
    says:

    You aren’t going to reasoned the Forced Birthers into a pro-choice position. You need to overpower them politically to do so.Report

    • Burt Likko in reply to LeeEsq
      Ignored
      says:

      Not my intent (with this argument, anyway). My intent is to make the concept of unenumerated rights more than a dead letter. This is a more ambitious undertaking than it ought to be, given the Ninth Amendment and thus by extension, the Fourteenth also. But even in the relatively few comments made so far we see people here who simply can’t accept the idea that the Constitution protects more rights than the ones that are explicit, and others who seem amenable to the idea that there are unenumerated rights, but don’t know how to approach determining what they actually are beyond acknowledging that concept.

      Right now, the way that happens is, as a practical matter, “Wait for someone to claim such a right, then compare it to the customs and practices of 1868 (if they’re claiming it as against a State) or 1791 (if they’re claiming it as against the Feds).” I propose we can be more generous than that. Maybe that means we recognize abortion, or privacy, as an unenumerated right. Maybe not. What I’m really hoping is people can agree that we needn’t be bound by nineteenth-century thinking when we ask ourselves “What are our rights?”Report

  6. PD Shaw
    Ignored
    says:

    I’m not down for grafting a libertarian check on legislation to be administered by the recruiting class of the Harvard/Yale law school. I think the main issue in the country right now is the difficulty of legislating, both at the state and federal level Having an additional screen to maximize individual self-actualization won’t make any of that easier.

    I don’t know whether abortion would pass Burt’s test, it looks like it depends on who is on the Court. I think its more clear that it would pass the “Lochner test”: “Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?”Report

  7. Patrick
    Ignored
    says:

    Looks like the latest release is that due process isn’t a right reserved to the people, it’s a privilege granted to citizens.

    For years the Natural Law tradcath conservative folks have been telling me that rights and Natural Law were *why* the U.S. constitution was justified: it was based in natural law, and yadda yadda also why Christian nation etc. etc.

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    Nope, not about “persons” at all, apparently, but “citizens”.

    Now it’s time to get into the nitty gritty of honing down “citizens”.Report

    • Pinky in reply to Patrick
      Ignored
      says:

      Did Alito make that argument, or is that your interpretation of his argument? I could actually understand an argument that due process isn’t a human right because it’s based on the legal structure of a given country, but I hadn’t heard that Alito made that argument.Report

      • Patrick in reply to Pinky
        Ignored
        says:

        The majority in Patel v. Garland (Barrett wrote, but Alito joined):

        “Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances.

        Federal courts have a very limited role to play in this process. With the exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends – specifically, whether it precludes judicial review of factual findings that underlie a denial of relief.

        It does.”

        My read:

        If the AG makes up some bullshit alleged facts about why they are denying a petition for relief, or relies upon someone elses’ made up bullshit alleged facts about why the AG should deny a petition for relief, the courts cannot adjudicate the decision of the AG, because Congress restricted due process for non-citizens.

        So it’s okay for someone to petition the Court if the AG says, “I’m denying this petition because the petitioner is the wrong color, and I don’t like brown people”, because that’s a Constitutional question. But if the AG says, “I am denying this person because they committed multiple felonies in their home country”, the petitioner can’t go to the Court, even if the AG is outright lying about the multiple felonies.

        No more due process for non-citizens.

        That means due process isn’t for people, any more. Just the right ones. And Congress gets to decide who the right ones are, says SCOTUS.Report

  8. Mike Schilling
    Ignored
    says:

    Requiring a “careful description” of the proposed fundamental right kind of gives the legal game away. If you’re going to address a claim to an unenumerated right, you can strongly influence the disposition of that claim based on the way in which you frame that right. In every case, you’re going to have a person who wants to do a particular thing. In opposition, you’re going to have a governmental entity of some sort that wants to prevent that person from doing that thing.

    Pitch framing; it’s not just for catchers.Report

  9. Mike Schilling
    Ignored
    says:

    There was no federal right to interracial marriage in 1868 or for almost 100 years afterward. Alito could use the same argument to strike down Loving tomorrow.

    (BTW, don’t tell me there’s no constituency for doing so. That’s not the point.)Report

    • Philip H in reply to Mike Schilling
      Ignored
      says:

      Or Gay marriage . . . or contraception . . . and there are constituencies for all three, some louder or larger then others.Report

    • DensityDuck in reply to Mike Schilling
      Ignored
      says:

      There’s no federal right to judicial review and approval of Federal legislation, either; that was something the Supreme Court up and decided it could do in 1803.

      I mean, “well maybe THEY WANNA CHANGE THAT TOO”, sure, but if you’re saying “of course the Supreme Court can do that, it’s just what they do” you’re relying on the same “established practice of society is precedent, de factor is de jure” reasoning as Alito.Report

    • PD Shaw in reply to Mike Schilling
      Ignored
      says:

      Nah, the federal Civil Rights Act of 1866 implicitly banned racial-endogamy laws, and that Act was subsequently converted into the 14th Amendment. For the next several years, racial-endogamy laws were repealed, went unenforced, and were voided by judges at least where Republicans held sway, including in Southern states during the early stages of Reconstruction. When the Supreme Court began to eviscerate the Fourteenth Amendment, beginning with the 1873 Slaughter-House cases, the tide retreated.Report

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