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PaperclipPerfector  4d ago (text post)   18108 thread views

Culture War Roundup for the week of June 2, 2025

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This is what happens when you have a constitutional right that a sufficient number of states simply choose not to recognize as such; look at how many southern states kept passing more and more onerous abortion restrictions to get around Roe

This comparison irritates and mystifies me.

The right to bear arms is quite directly in 2A:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

But the right to abortion is...nowhere. It's inferred from the right to privacy, which is inferred from due process (5/14A):

No person shall ... be deprived of life, liberty, or property, without due process of law

I'll grant that there's some legal history and subtlety around what counts as an "Arm," but that's a much smaller inferential distance than the above.

Why would "abortion, but only up to a certain point in the growth" be part of...I guess "liberty"? But, "drug legalization" somehow isn't?

In classic Mottian fashion, I'm a high decoupler in general, and on this - I'm personally anti-gun and pro abortion. But, that doesn't change that the legal footing of them is exactly opposite in strength: my desires are not constitutionally protected.

But the right to abortion is...nowhere. It's inferred from the right to privacy, which is inferred from due process (5/14A)

I am anti-abortion myself, but I actually think that the demand for abortion rights to be supported by the constitution is itself not supported by the constitution.:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Therefore, just because something isn't in the constitution doesn't mean people don't have a right to it. In fact it's the opposite - if something isn't in the constitution, the people by default have a right to it, and the burden of proof is on those who would say otherwise. I am fine with the result of having Roe decided by the states (it always should've been imo), but I don't much like the legal reasoning used to get there.

I wish that passage were given more weight, but I don't think it's that open-ended. It's most likely a reference to rights established by the English constitution as the authors understood it, with an emphasis on those in the Declaration of Right. It may also include some common-law rights.

If read in that light, I think it would have some radical implications. But it wouldn't establish a compelling interest test for each and every federal law.

Isn't this a case of who, whom yet again? Depending on how you answer the question of the personhood of the fetus, it's either the right to a simple medical procedure removing some cells, or it's superseded by the right to life for a developing human being.

Has SCOTUS jurisprudence found literally any rights to be established by the 10th amendment?

In practice, the anti-Federalists demanding an explicit enumeration of rights seem to have been right: nothing unenumerated is ever found to exist. Sorry, Hamilton stans.

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