I felt like Diogenes of Sinope this morning, fruitlessly clicking through the mass media sites for legal analysis of the majority opinion in this draft ruling. Isn't the opportunity to make such analysis the only thing that matters about the content of the leak? We all knew that Amy Coney Barrett was appointed specifically to undo Roe and that the court was now balanced 6-3 (although it seems this ruling might be 5-4 in the end). We talk about the silliness of "originalism" but it seems vital to do exactly what you are doing here, unravel the mystique of originalism by showing precisely how it was fabricated, in this case apparently through the addition of the literal word "objective" to some earlier highly subjective and fuzzy statements.
I have not studied law or the constitution but I sure felt the need to read Alito's opinion and as a lay person, I was not impressed. Thank you for talking about the court's requirement that a protected right needs to be "objectively, deeply rooted in this nation's history and tradition." That jumped right out at me, along with the long 'history of abortion' law he gives, dating back to the dark ages. OF COURSE a woman's right to choose is not rooted in history going back hundreds of years before Roe. How could it be when ALL the laws were made by men, women had no participation in government, couldn't vote, were not heard, were just meant to get pregnant and take care of their men. Times are different! And in Moore v City of Cleveland, 1977, Justice Powell states that "Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment." So which is it?
I felt like Diogenes of Sinope this morning, fruitlessly clicking through the mass media sites for legal analysis of the majority opinion in this draft ruling. Isn't the opportunity to make such analysis the only thing that matters about the content of the leak? We all knew that Amy Coney Barrett was appointed specifically to undo Roe and that the court was now balanced 6-3 (although it seems this ruling might be 5-4 in the end). We talk about the silliness of "originalism" but it seems vital to do exactly what you are doing here, unravel the mystique of originalism by showing precisely how it was fabricated, in this case apparently through the addition of the literal word "objective" to some earlier highly subjective and fuzzy statements.
I have not studied law or the constitution but I sure felt the need to read Alito's opinion and as a lay person, I was not impressed. Thank you for talking about the court's requirement that a protected right needs to be "objectively, deeply rooted in this nation's history and tradition." That jumped right out at me, along with the long 'history of abortion' law he gives, dating back to the dark ages. OF COURSE a woman's right to choose is not rooted in history going back hundreds of years before Roe. How could it be when ALL the laws were made by men, women had no participation in government, couldn't vote, were not heard, were just meant to get pregnant and take care of their men. Times are different! And in Moore v City of Cleveland, 1977, Justice Powell states that "Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment." So which is it?
Is Ben Franklin publishing a recipe for abortion "deeply rooted in American history"?
https://slate.com/news-and-politics/2022/05/ben-franklin-american-instructor-textbook-abortion-recipe.html
Thanks -- I've linked to this in the "Further Reading" section of a paying-subscriber post.
Well written & well reasoned. I vigorously concur!! Thank you!
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2336&context=faculty_scholarship
Prescient.