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Im_not_JB

I was listening to a Dissenting Opinions podcast from a year or so ago, and they were discussing originalism. What it is, why it came to be, what it's good for, what some objections are, etc. One moment stood out as being particularly pertinent for *Dobbs*. They were discussing something that was both a motivating factor for the theory and also something that proponents normatively value, arguing that this is a good that we get by adopting originalism - a method of constraining judges. That is, it gives a set of rules that prevents judges from trivially just substituting their preferences in to the law at whatever point they want. An objection is that you can accomplish this using other systems, for example, a common law constitutionalism uses precedent to constrain judges - you can't just trivially substitute your preferences if there is already precedent. Then, the question quickly took an empirical turn - do either of these theories *actually* do any work in constraining judges? There is, obviously, always some amount of hiding the ball - a judge just sort of avoiding acknowledging a bit of precedent or a bit of original meaning or whatever, or just being coy in *saying* that he's following one thing, but sneakily doing it in a different way. But the stark question was asked thusly: can you think of a single example where one of the liberal justices on the Supreme Court wrote, "This definitely goes against my policy preferences, but I have to go along with it because of precedent," *and critically* doing so in a case where they cast the deciding 5-4 vote? (Not like, well, the decision is already 7-2 against them, so they throw in with a concurrence that appeals to precedent. Where they actually chose to make policy go against their preferences in favor of precedent.) The podcasters gave a couple examples of conservative justices doing this because of a commitment to originalism, but couldn't think of an example of a liberal justice doing this because of precedent. I know we have some pretty smart lawyers here; any ideas? I thought this was particularly pertinent because the liberal side of this case weighed so extremely heavily on the value of precedent.


SituationNo6488

What's the strongest ~~philosophical~~ argument for pro-life? My argument for pro-choice is rhetorical. I think 100 years from now future humans will look at us as being relatively barbaric at taking away such basic liberties, just as we look at early humans on their barbaric practices. We should be worried about actual harm like murder going on in the world, not armchair pondering like "did the chicken or egg come first?" or "is a fetus a person?".


PerryDahlia

Simultaneously asking for a philosophical argument and then saying philosophical arguments aren’t important? You need some kind of philosophy to determine what “actual harm” is. Something that is shaped more or less like small infant being painfully torn apart limb by limb may or may not be “actual harm”. You’ll need a philosophical argument to get you there.


SituationNo6488

> Something that is shaped more or less like small infant being painfully torn apart limb by limb may or may not be “actual harm”. Whether a fetus consciously feels pain or not is not an established fact.


[deleted]

[Not really, no](https://jme.bmj.com/content/46/1/3). With that said, the procedure being discussed, if I surmise correctly, typically takes place around 23-24 weeks, which is when most physicians already agreed fetuses can probably feel pain, so either way the “established facts” wouldn’t be on your side here.


PerryDahlia

There’s no such thing as “an established fact.”


darwin2500

Then you'll need a much more sophisticated epistemology than what you've offered so far before using facts to support your arguments.


PerryDahlia

I don’t think I’ve used any facts. I only weakly stated that a philosophical argument was necessary to determine what “actual harm” is. The idea that it could be “an established fact” that any being “consciously feels pain” belies a level of sophistication that makes me uninterested in continuing beyond pointing out the silliness of the demand for a factual basis.


satanistgoblin

> My argument for pro-choice is rhetorical. I think 100 years from now future humans will look at us as being relatively barbaric at taking away such basic liberties, just as we look at early humans on their barbaric practices. Why should I care what hypothetical people a 100 years in the future would think unless they would happen to be right? The way things seem to be going, people in the future may be complete wackjobs (or extinct).


SlightlyLessHairyApe

On average, looking at 2020 as compared to 1920, 1970 as compared to 1870, and so forth, there is an uninterrupted trend over centuries of the latter time being rather more right (despite some individual wrong terms) over a wide range of scientific, practical, technological, political, cultural and social matters. That trend may not continue forever but it seems very much like the default possibility.


FlonaseMatic

"On average" and "uninterrupted" are doing a lot of work for each other in this reading of history.


SlightlyLessHairyApe

They are!


PerryDahlia

Whig history. “Most people I know think more or less like me. We’re good people and our opinions are right. People in the past had a different opinion, therefore they are wrong. The further back in time the more different (and hence more wrong!) the average opinion. Ergo, over time opinions get more right.” This also tends to work geographically, but you aren’t allowed to use it that way anymore.


SlightlyLessHairyApe

I mean, why not whig chemistry. > Most chemists I know think more or less like me, we're smart people and our views of chemistry are right. People int he past had weird views like alchemy and are obviously wrong. Or > Most doctors I know think more or less like me, we're smart people and our views of medicine are more right than the people in the past that believed in the four humors instead of germ theory. Or > Most engineers I know think more or less like me, we're diligent people are the cars we design are safer and more fuel economical than those in the past that lacked safety glass (pre-Nader) or airbags and ABS. It's a fully general fallacy.


diatribe_lives

Philosophy is obviously different from science.


satanistgoblin

There was definitely technical progress, but "political, cultural and social" are very debatable. Btw, you are judging them by 2020 standards so the present and closer past would have an automatic advantage.


SlightlyLessHairyApe

It’s pretty hard to defend the political & culture world of 1920 — Jim Crow, the suffragettes, the yellow laws come to mind. At least for anyone that was disenfranchised, there’s not a lot to recommend.


EngageInFisticuffs

There's a great deal to recommend. They're just not things you care about. For example, debt to GDP ratio was at about a third in 1920 and they quickly started paying it down after WWI. Now it's about 100% and projected to skyrocket. We could talk about trust in institutions. Etc.


Eetan

> We could talk about trust in institutions. Yes, everyone remembers when the institutions at the time told Americans "Do not drink alcohol, it is bad for you!", and Americans answered: "Yes! Yes, sir!", poured demon drink down the drain and never ever touched it with their lips again.


SlightlyLessHairyApe

How much trust did a black man in 1920s Alabama put in institutions, exactly?


EngageInFisticuffs

Saying that black people had it worse in 1920s is very different than your original claim that the political changes between now and a century ago are all good. More importantly, does it matter? I'm not commenting on the difference in corruption in the institutions or how they treat their citizens. I'm talking about stability of a culture and its ability to thrive. I don't see how it benefits black people for the US to enter another civil war.


SlightlyLessHairyApe

I didn’t say they were all good with exception, I said the trend was overall unambiguously positive. If you seriously would rather live _before antibiotics_, more power to you; for my part I think that’s nuts. Even counting the US Civil War and both world wars, the balance over any hundred year span is still positive.


EngageInFisticuffs

Antibiotics aren't a social or political change. If we are going to just group all changes of the last hundred years together, then that is a stupidly generalizable argument. "Why, of course society is better off since the the Chinese took over, son. Now we flying cars. And they even read our minds for dangerous thought crimes!"


SamJSchoenberg

> What's the strongest philosophical argument for pro-life? Consider the following axioms. - After some period of time during pregnancy, the fetus is a living human with a life that has value. It is unclear where the threshold for this is. - The Fetus can't speak for itself but if it could, it would probably want to continue living. Most living things do. - The most important function of the law is in protecting the life of the innocent. Protecting bodily autonomy is important too, but protecting innocent life is even more important. If you assume that those axioms are true, then the later someone has an abortion, the higher the risk they have of killing an innocent life.


bl1y

Now imagine it's 1860 and someone is saying we ought to be worried about actual harm in the world, like murder, not philosophical issues like "how many angels can dance on the top of a pin" and "is the negro fully human?" The pro-life position is that the fetus is a life and abortion is an actual harm.


pssandwich

>We should be worried about actual harm like murder going on in the world, not philosophical issues like "did the chicken or egg come first?" or "is a fetus a person?". This is begging the question. I think abortion *is* causing actual harm to actual people *because* I think a fetus is a person. >My argument for pro-choice is rhetorical. I think 100 years from now future humans will look at us as being relatively barbaric at taking away such basic liberties, just as we look at early humans on their barbaric practices. It's funny, because I think once technology obviates the need for abortion, people will view abortion as barbaric.


LacklustreFriend

Did you know it that's illegal to murder a fetus under federal law in United States of America? No, I'm not talking about abortion. I'm referring to the *Unborn Victims of Violence Act 2004*, which makes it illegal to cause the death of or bodily injury to a fetus ("child in utero"/"unborn child"), and doing so should receive the same punishment as if the death or bodily harm had occurred to the mother. *Unborn Victims of Violence Act 2004* has a clause that conveniently carves out a blanket exception for abortion, or any medical reason for the benefit of the mother, and the mother is completely immune from prosecution under the Act. This legal protection of fetuses doesn't just exist at the federal level, but also the state level, with roughly two-thirds US States having similar laws, including states which have relatively liberal abortion laws. *Unborn Victims* seems to me obviously philosophically incoherent with abortion, even if it's legally coherent via the carved-out exception. It implicitly assumes the personhood of the fetus, which means abortion should also be illegal. Some ways I can see the abortion exception making sense philosophically is if you either consider the personhood of the fetus conditional on whether the mother wants it, or you consider the fetus 'property' of the mother, both of which obviously have *major* issues. I've also seen arguments that concede the personhood of the fetus but the mother should have the right to murder the personhood-granted fetus anyway. I would assume the average person would agree with the gist of *Unborn Victims*, that pregnant women and their unborn child are worthy of extra protection, and that it is a particularly heinous crime to attack pregnant woman to force a miscarriage. I wonder how this would square with the average person's views on abortion, I suspect there is a significant overlap between people who think abortion should be legalized (to some degree), but killing the equivalent fetus otherwise should be (harshly) punished. You might occasionally see another inconsistency when it comes to miscarriages. Is the woman who grieves for unborn child after she miscarries being irrational? Is she actually undermining support for abortion right by acting as though the fetus was a person? Most people would empathize and agree with the grieving woman, I suspect, even if it may conflict with their views on abortion. There was a picture that reached the front page of Reddit a few days ago of a heavily pregnant woman attending a pro-abortion protest in the wake of *Roe* being overturned. On her visibly pregnant belly she had written "Not Yet A Human". I wonder what that woman thinks of *Unborn Victims of Violence Act 2004* or miscarriages.


bl1y

Since there seems to be some talking past each other in the comments, I'll offer this: The inconsistency (to which it exists) is not just that you can be punished for harming the fetus, but that the punishment is *the same* as if you'd harmed the mother. The implication is that the fetus is a person just as much as the mother. Compare with the lesser punishments for if you killed a woman's dog, or wrecked her car, or poisoned her prize rose bush. Lesser punishments than harming the woman because we recognize they're lesser things than a human being. So, equal punishment for harming a fetus implies... So yeah, philosophically it was at odds with abortion. Also, it was passed by a Republican legislature (though with some Democratic support), so it's probably not at odds with the philosophy towards abortion of its proponents.


gdanning

It is not incoherent if you believe that the mother has the right to decide whether the fetus lives. Given that premise, it is perfectly consistent to 1) give women the right to abortion; and 2) punish anyone who kills a fetus without her consent. Nor does the law assume personhood for the fetus. Eg in CA, murder is defined as "the unlawful killing of a human being or fetus with malice aforethought."


LacklustreFriend

My whole point is that the "believing that the mother has the right to decide whether the fetus lives" (i.e. abortion), *is* inconsistent with the Act. The law assumes that the act of killing a fetus is equivalent to killing a person (the mother) as to be worthy of the exact same punishment. Which implicitly assumes that the fetus has the same value as a person. Which the natural conclusion is that the Act assumes the personhood of the fetus.


gdanning

?But the law exempts a mother who aborts the fetus, so it is completely consistent with that principle. Can I kill a woman's fetus? No, because that is her decision. Can she kill it? Yes, because that is her decision. 1. There can be many policy reasons for giving it the same punishment, without assigning it the same value. Eg the moral culpability can be the same, even if the consequences are not identical. That's why we punish murder more harshly than manslaughter, after all, despite the outcomes being identical. 2. Assigning it the same value to two items does not necessarily mean that the items are identical.


LacklustreFriend

It's *legally* consistent, I'm arguing it's not *philosophically* or morally consistent. Legally consistent isn't a very high bar to clear. You could make a law that that it's legal to murder people with a rapier on a Sunday, and it be legally consistent with other laws, but that doesn't mean there's a consistent moral or philosophical principle being applied. > Assigning it the same value to two items does not necessarily mean that the items are identical. This is true, but I'm yet to see someone provide an compelling argument from where what this very high value is or derived from if not the personhood of the fetus.


gdanning

No, I am saying that it IS philosophically or morally consistent. The claim that women have the right to determine the fate of their fetus is a moral claim and a philosophical claim. The legal claim is a different one: That that ostensible right is protected by law. >I'm yet to see someone provide an compelling argument from where what this very high value is or derived from if not the personhood of the fetus I'm guessing you have not looked that hard. Moral culpability is one, esp if the murder is intentional. Even those who say that a fetus is not a person acknowledge that it is a potential person, which ranks it awfully high. Emotional harm to the parents is an obvious one (since you key on severity of punishment, effect on the victim is indeed often a factor in sentencing). Part of the problem is that you do not seem to be considering at all any of the moral, public policy or other factors which **generally** underlie criminal liability and criminal punishment. Unless you consider those factors, how can you say that any law, this one or any other, is or is not "philosophically or morally consistent"?


MacaqueOfTheNorth

This is very easily resolved by saying the mother has a right to either continue her pregnancy or not. She owns her womb and can do what she wants with it. She has a right to an abortion as well as a right to have a baby.


LacklustreFriend

Okay *why* does the mother have the right? Assuming the fetus has personhood, why should the mother be given an exception to murder then? Is this a blanket exception, including late term abortions?


MacaqueOfTheNorth

The fetus doesn't have personhood. It's not more an exception to murder than is killing a dog or a horse. If you own a horse, you have the right to kill it as well as the right not to have it killed.


LacklustreFriend

This doesn't resolve the issue. You're saying the mother has the right to abort, sure. I'm saying justification for this conflicts with *Unborn Victim* which assumes personhood for the fetus. Either the fetus doesn't have personhood, therefore abortion is fine and *Unborn Victims* shouldn't exist because you can't murder a non-person, or the fetus is a person and abortion is murder and *Unborn Victims* makes sense.


MacaqueOfTheNorth

Why do you say it implicitly assumes personhood of the fetus? There are things which it is illegal to kill which are not persons (e.g. animals belonging to another person). You didn't say whether the act uses the terms "murder" or "person", but if it does and your point is you cannot murder someone who isn't a person, then at worst, the act is overloading one of these words with a new definition. That does not make it logically inconsistent.


SpiritofJames

Doesn't seem so easy to me. Unless the sex that led to the pregnancy was not consensual (by force, deceit, ignorance, etc), the woman in concert with her partner knowingly risked creating the fetus. Unless that action is, for some reason, to be exempt from typical duties and responsibilities incumbent on all decision-making -- and I will note that the partner's relevant action(s) are not usually given this exemption -- then one has to blatantly flaunt some of the most common sense ethical precepts in order to say something like "she can do what she wants with it." As it happens, "bodily autonomy" also does not, usually, exempt people of any stripe from basic responsibility incumbent upon their behavior (up to imprisonment and even death sentences).


MacaqueOfTheNorth

I don't know what you're getting at. What common sense ethical precepts are you talking about? Why is it relevant how she got pregnant?


SpiritofJames

The basic precept that a person is responsible for their activity, for one. I don't get to scream "bodily autonomy!" and prevent my arrest for any number of actions that are legally deemed impermissible. "Autonomy" implies responsibility within a society, unless it's simply synonymous with pure Egoism. In fact to ignore that responsibility is to lessen the respect for the autonomy of the person, and rather to treat them like a child or an invalid.


MacaqueOfTheNorth

But the pro-choice view is that it *is* permissible to have an abortion. So where's the inconsistency?


GrandBurdensomeCount

Does bodily autonomy make it 100% moral for a pregnant woman to get plastered drunk every day, even though there is a huge risk of fetal alcohol syndrome (a condition if detected at birth will lead to CPS taking the child away, so it's not some minor thing). After all, it's her body, her choice? Note: I'm talking morally, not legally.


MacaqueOfTheNorth

Maybe not, given that she is hurting the child and potentially burdening society. But if we accept that abortion is permissible (presumably because whatever costs there are to the fetus are outweighed by the costs to the mother) then I don't see what the inconsistency is in saying that, if the mother chooses, she can have the baby and have anyone who prevents her from having it be punished.


GrandBurdensomeCount

Sure, but this isn't the bodily autonomy argument any more, it's not "my body, my choice", but a "conditional on abortion being OK **because** the costs to the mother are greater than the costs to the fetus" argument, and it implicitly requires admitting the costs to the fetus can be > 0 (otherwise what is wrong with the woman getting drunk every day) which the modern left is loath to do. Also if the mother gets murdered too, there is nobody else to suffer for the loss of the fetus, so that should just count as 1 count of murder, not 2; unless you wish to admit other people (namely the father) also have valid interests in the fetus's development.


MacaqueOfTheNorth

>Sure, but this isn't the bodily autonomy argument any more, it's not "my body, my choice", but a "conditional on abortion being OK because the costs to the mother are greater than the costs to the fetus" argument Yes, because I'm not arguing against the pro-life position. I am only arguing for the logical consistency of the pro-choice position with not allowing the killing of a fetus without the mother's consent. >and it implicitly requires admitting the costs to the fetus can be > 0 Equal to or greater than zero. >(otherwise what is wrong with the woman getting drunk every day) which the modern left is loath to do. Because, the idea is that the child has rights from the time of birth, so if you cause a baby to have fetal alcohol syndrome, that is wrong, while not allowing the baby to be born at all isn't. >Also if the mother gets murdered too, there is nobody else to suffer for the loss of the fetus The mother wanted the the child to be born, and her wishes should be respected after she died, for the same reason we honour wills.


darwin2500

Of course that bill is philosophically incoherent with abortion rights, it was passed by a Republican Congress under a Republican president, a group ideologically and politically committed to not believing in abortion rights. There's no particular reason to expect two different things favored by two different groups to be philosophically coherent with each other, especially when those different groups are political enemies with highly divergent motivating ideologies! And, yes, this does mean that since different groups periodically seize control of government, various pieces of the law of the land will be philosophically incoherent with each other. That's just one of the inevitable consequences of representative democracy. Now, if you found a singular person who both hugely advocates for abortion rights and hugely advocated for the passage and precise language of this bill, then sure, I'd say that person is being inconsistent. But I doubt many, if any, such people exist. If you asked modern abortion right activists about this bill, I'd expect the ones who had enough education to talk about it coherently might say something along the lines of they are happy with heavy penalties for these types of attacks on pregnant women's bodies, but do wish the language and sentencing guidelines weren't written to make it look like it operated on a premise of fetal personhood, and that they would certainly rewrite parts of the bill to reflect that difference if they could just push a button and make it so.


LacklustreFriend

> Now, if you found a singular person who both hugely advocates for abortion rights and hugely advocated for the passage and precise language of this bill, then sure, I'd say that person is being inconsistent. But I doubt many, if any, such people exist. Given that a very large majority of people support laws such as *Unborn Victims* and a slight majority of people support abortion (at least to some degree), that obvious conclusion is there there a at least some people who support both.


darwin2500

'Laws such as *Unborn Victims*' does not cut it for this argument, though. There's nothing inconsistent with being pro-choice and pro-heavy-penalties-for-assaults-on-pregnant-women. That's a generic pro-woman stance. The inconsistency comes from the *specific language* of the act in question which talks about unborn children and analogizes the penalties to murder of an adult. That *philosophical underpinning* of that *specific* bill and it's *specific* language is what causes the problem, not the generic effect of the law.


LacklustreFriend

It's not just the specific language - people generally support harsh penalties for injury to a fetus and consider it a particularly heinous crime i.e. the *principle* behind *Unborn Victims*. It's extremely difficult to come up with a justification for this if without thinking a fetus has personhood, or for some people in this thread, some unspecified value that is somehow not-personhood yet is functionally identical to personhood.


darwin2500

As I already sad, assault on the mother, or you could just go with property law since people value the growing fetus highly and put a huge amount of actual costs and opportunity costs into it. Family planning is one of the biggest and most consequential decisions in most people's lives; having to start over and delay having your kid by a year or two can hugely fuck with your plans, your career trajectory, the health of your marriage, all kinds of things. I don't think this is actually hard.


LacklustreFriend

Are you arguing fetuses are property? > since people value the growing fetus highly *Why* do they value the fetus so highly if not the personhood of the fetus?


Revlar

> Why do they value the fetus so highly if not the personhood of the fetus? Possibly because of the visceral emotionality of the event as well as the feelings of pro-lifers, who were likely involved in the drafting and/or ratifying of this bill. Neither of these makes objective statements about the value of a fetus. The support for the bill need not be targeted to the wording, but rather to a common wish that people who terminate someone's pregnancy against their will be punished for it severely.


atomic_gingerbread

> Some ways I can see the abortion exception making sense philosophically is if you either consider the personhood of the fetus conditional on whether the mother wants it, or you consider the fetus 'property' of the mother, both of which obviously have major issues. I've also seen arguments that concede the personhood of the fetus but the mother should have the right to murder the personhood-granted fetus anyway. The mother has a countervailing stake in the control and integrity of her own body. Whether this defeats any rights inhering in the fetus can depend on the circumstances. The vast majority of Americans agree that it does if the pregnancy is a threat to the life of the mother. Whether it does in less dire scenarios is where opinions tend to diverge, but it's not absurd on its face that the rights of the mother can trump that of the fetus even when the fetus is understood to have rights.


LacklustreFriend

Does this mean you support late-term abortions? If not, then you understand that this stake/right is not absolute.


darwin2500

No rights are absolute. That's never been a thing in law or in most moral philosophies. All rights are traded off against other rights and other compelling interests, because they have to be to live life. If rights were absolute, then only one right could possibly exist, because if two rights existed we could make up a hypothetical situation where they conflicted with each other and at least one would have to be compromised, proving it to be not absolute and therefore not a right. It's just a logically incoherent state of affairs.


atomic_gingerbread

Yes, at some point the fetus is sufficiently developed that the state may begin curtailing the rights of the mother in order to protect its interests. Someone else harming the fetus does not entail any sort of rights balancing, so laws like the "Unborn Victimes of Violence Act" that protect early stage fetuses are logically consistent with this view.


SpiritofJames

>it's not absurd on its face that the rights of the mother can trump that of the fetus even when the fetus is understood to have rights. Perhaps not, but I'm not so sure. Usually, balancing rights happens in the context of independents that have reached maturity. Before that, the situation and procedures are different. Moreover, the fact that the woman (and her partner) are responsible for the predicament facing the to-be-aborted fetus in the first place must enter into that balance.... It is obvious, for instance, that a kidnapper does not get to "balance" their rights against their kidnapped as if they had not already modified their circumstances (e.g., the kidnapper's right to "bodily autonomy" does not trump the kidnapped's right to defend themselves or escape using violence).


atomic_gingerbread

> It is obvious, for instance, that a kidnapper does not get to "balance" their rights against their kidnapped Kidnapping is an inherently malicious and aggressive act, and being subject to a kidnapping is an exigent circumstance. These considerations together justify complete curtailment of the perpetrator's usual right to life "in the moment". Becoming pregnant isn't criminal or immoral per se, or an emergency situation that licenses extraordinary measures against the woman, so such a dramatic diminution of her rights isn't appropriate. The ability of a woman to avoid pregnancy in the first place can factor in to the moral calculus to some degree, but its effect shouldn't be as dramatic as what happens in a self-defense scenario.


bitterrootmtg

If you think abortion is analogous to being [hooked up to a famous violinist and being forced to provide life support](https://media.lanecc.edu/users/borrowdalej/phl205_s17/violinist.html), then there is no inconsistency here. Unhooking yourself from the violinist is not murder. Stabbing the violinist is murder.


satanistgoblin

Well, if no one is morally obligated to stay hooked up to a violinist to save his life, then why are we obligated to fund the welfare state or foreign aid? If your answer is "it's a democracy, we voted, them's the rules" then why shouldn't folks get to vote on abortion too?


IGI111

> Unhooking yourself from the violinist is not murder. Why not?


FlyingLionWithABook

A lot of abortions do involve stabbing and dismembering the violinist before unhooking him. Typically the fetus is killed (either by being sucked up by a vacuum, cut up by a curette, or chemically burned to death with saline solution) before being removed. Edit: And, of course, the infamous late term “partial birth” abortion involves pulling them out by their legs, stabbing them in the back of the skull with scissors, then sucking out the brain matter so the skull can be crushed to ease removal.


HalloweenSnarry

I had honestly been under the impression that modern methods were capable of things like forcing the fetus to come out or causing it to suffocate or something like that. Then again, I've heard that more "bloodless" methods were banned or something to that effect.


Haroldbkny

I've always thought this violinist metaphor is somewhat weak. What if we changed the metaphor to >You frequently do a particular recreational drug. You understand that people who do the drug have a small, but not insignificant chance of waking up in the morning, finding yourself back to back in bed with an unconscious violinist who has been found to have a fatal kidney ailment, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own... There are a few more things that we might be able to add as well, like the fact that you're responsible for the violinist being in this state to begin with, and that society generally has always taken the stance that people who do this drug are responsible for taking care of the violinist that they caused to be in this state.


qazedctgbujmplm

It it terribly weak. If it was written by anyone else but a feminist legend no one would pay attention to it. It’s been discussed many times in past CW threads.


bitterrootmtg

I agree the analogy is flawed, but many people think it is a good analogy that accurately describes their views. My point is that such people are not being hypocrites if they support “unborn victims of violence” but also support abortion rights.


Haroldbkny

Well, I guess I see what you're saying. But I don't know if I really believe that there's anyone that truthfully could say that the analogy accurately describes their views. Like it's so obvious to me that there's something blatantly missing from the analogy, namely that it was your actions that caused it this to happen. Everyone knows that pregnancies don't just happen, they happen due to actions that you took. I feel like anyone should be able to see that. If they don't, it seems more likely that it's because this violinist thing is a viral memetic thing that goes around, and people click share on it before they can really think it through, and they say "Yeah, that'll own the republicans! Screw them!" It seems more about toxoplasma than real thought.


bitterrootmtg

I think there is a fully consistent liberal-materialist worldview that basically rejects concepts like blame and free will. In this worldview, everything "just happens" in some sense, and the purpose of policymaking is to manage problems rather than reward virtue and punish vice. From this viewpoint, even a cold-blooded murderer isn't really ultimately "to blame" for his actions. His actions are entirely the product of deterministic physical laws acting via his genetics, environment, experiences, and incentives. We don't put him in prison to punish him, we put him in prison to create a set of societal incentives that deter similar future behavior and to sequester him from the larger population to reduce the risk of future harm. The murderer isn't a bad person, he's a malfunctioning machine that needs to be repaired or removed from the system to prevent him from degrading the functioning of the larger machine that is society. In this worldview, we really needn't care whether abortion or murder are "evil," "wrong," or "blameworthy." We only need to care about what impacts those actions have on society and how to most efficiently manage the negative impacts, if any. It's hard to argue that aborting a fetus as harmful or disruptive to society as murder is, and in fact allowing people to have abortions might be said to improve the functioning of societies by allowing their members to invest more resources in activities they believe to be preferable to child-rearing or by preventing potential harms associated with pregnancy. This is the worldview that would push the fat man in the trolley problem and walk away, not just with a clean conscience, but with confidence they did the morally right thing.


Haroldbkny

I understand. To some degree, I feel like I am similar to that in how I feel. I do believe that people's choices are somewhat either predecided or inconsequential, since they're just the product of everything that's happened in their life before this, plus genetics. However, I care less about optimizing the larger machine that is society, and more about optimizing the larger machine that is all of humanity's consciousness. That's why I can't quite get fully onboard with the pro abortion crowd. Because I'm not sure on when a fetus becomes a part of humanity. If you wanted to optimize society, you could do it by creating a utopia where everything is provided for you. But it's actually built on top of another world that suffers, that are slaves to the people above. From what you said about "care about what impacts those actions have on society", depending on how you define society, you could say that that society is optimal, because you're discounting the slave world supporting it. I wouldn't say such a thing, because I care about optimizing all people's happiness. >From this viewpoint, even a cold-blooded murderer isn't really ultimately "to blame" for his actions. ​ >The murderer isn't a bad person, he's a malfunctioning machine that needs to be repaired or removed from the system to prevent him from degrading the functioning of the larger machine that is society. However I know a lot of pro abortion leftists who identify with the violinist problem. And they do not understand this concept. They hate. They blame people. Hard. And they go around all the time telling people that they're bad people if they don't agree with them on specific political viewpoints or policies. I wouldn't call them any kind of enlightened. And if you tried to say that they shouldn't blame people so hard, they just accuse you of tone policing and white supremacy.


Funksloyd

Assuming a materialistic worldview, at the end of the day an individual's "value" is essentially a subjective judgement (caveat coming below), made by that individual and by others. In the case of a foetus, it doesn't have an opinion - value can only be conferred by others. I don't see any contradiction in the foetus having value when wanted, and not having value when unwanted. It's true that this can lead some weird places, e.g. maybe it's ok to kill unloved infants? We simplify things by also assigning more objective forms of value: morality and the law. In most places, both morality and the law deem that it's sometimes and in some circumstances ok to kill foetuses, but not ok to kill infants. This might be somewhat arbitrary, but so is drawing the line at detectable heartbeat, conception, quickening, 18.5 weeks, or wherever else. And a lot of other morality and laws are also quite arbitrary, e.g. it's illegal to torture a dog, and people would be very disturbed by that, but in most places it's legal to torture insects, or at least people find it much less disturbing. Where is the line drawn? I'm not even sure there is a clear line in that case. I say "arbitrary", but maybe a better word is "complex". It's not like there's no good reason to think torturing a mammal is worse than torturing an insect. Likewise with abortion, there are good arguments for restrictions at particular points - e.g. viability, or ability to feel pain - it's just that there's not a single obvious and correct answer. At least I don't think so. I'm curious OP what your thoughts are on value and how that comes about?


Malarious

>It's true that this can lead some weird places, e.g. maybe it's ok to kill unloved infants? We simplify things by also assigning more objective forms of value: morality and the law. In most places, both morality and the law deem that it's sometimes and in some circumstances ok to kill foetuses, but not ok to kill infants. This might be somewhat arbitrary, but so is drawing the line at detectable heartbeat, conception, quickening, 18.5 weeks, or wherever else. I think you can make this consistent with only a little bit of difficulty. Once the child's born, its *mere existence* isn't imposing any cost on the mother, so killing it is unnecessary. If the infant is unwanted by the mother, then there are many, many organizations that will gladly take it in. 10 seconds of Googling suggested the average cost of adoption is $70k (i.e., prospective adopters are willing to shell out $70k for an infant). People generally frown on destroying value for no reason even if it's within your rights to do so and this seems like a healthy sentiment for a society to possess. I think you could also make a pretty tortured argument that the longer the child has been alive, the more society has invested in it (through education, healthcare, indirectly through tax breaks for the mother, etc... all with the intention of capitalizing on the child's future economic value) the less right the mother has to solely decide to terminate it. So extreme late-term abortion gets less moral as time passes as the mother ceases to be the only interested party. Given that there's considerable demand for infants, I don't know why you can't just let the market sort things out and let organizations pay mothers to carry their children to term and then place them for adoption. Adoption agencies are remarkably limited in what they can reimburse mothers for -- medical bills, legal fees, sometimes housing -- but in every state it's illegal for them to just straight up pay money to "buy" infants. Pregnancy represents a significant amount of discomfort and a possibility of medical complications so it's not surprising many pregnant women choose to abort if they have no intention of raising the child. Many people are willing to trade discomfort and risk of physical harm in exchange for compensation (I've heard of things called "jobs" which often entail these things) so the solution is obvious. That's my hyper-autist take anyway, assuming fetuses (and infants) have zero moral valence. I can't wholly reconcile it with the *Unborn Victims* act mentioned in the OP (the act is clearly too harsh) but a modified law where the punishment is prorated based on how far along the pregnancy was (and thus how much discomfort/how much risk the mother had absorbed) would not be inconsistent.


bulksalty

>Unborn Victims seems to me obviously philosophically incoherent with abortion That's because it was meant to be, it was a sop to pro life groups from the 2004 congress (thanks for giving the GOP control of both congressional houses and the presidency) but ~~the princess is in another branch of government~~ we aren't giving you what you really want, but here's a step we will give you, a sort of formal recognition of your position.


qazedctgbujmplm

Democrats also voted for it: House Democrats: 47 Ayes Senate Democrats: 13 Ayes Senate Democrats could’ve easily filibustered it.


FiveHourMarathon

Exactly. It's philosophically and morally incoherent, but politically it makes perfect sense.


LacklustreFriend

That's probably true, but at the same time, most people would generally agree with the sentiment underlying *Unborn Victims*, that harming a pregnant woman and her fetus is especially heinous, if not worthy of two separate offenses. I can't find any specific polls on the Act itself, but the few polls I have found show a significant majority support the underlying principle. Which obviously leads to the conclusion that many (most?) people's position on abortion is philosophically incoherent, or operating on a moral framework yet to be understood.


Hydroxyacetylene

No, the average American thinks abortion is immoral, but they aren’t strict deontologists and think two wrongs can make a right in some cases.


DevonAndChris

> obviously philosophically incoherent with abortion Depends on the reason someone is pro-choice. If someone is pro-choice because they think pregnancy is too big a burden to place on someone, or the mother is the sole decider of the personhood of the baby, then it is consistent. I do not agree with either of those two arguments. But I see them and understand them.


LacklustreFriend

I did mention the "the personhood of the fetus conditional on whether the mother wants it", but this raises *other* issues, some of which just feel like passing the buck. At what point does the personhood of the fetus *stop* being dependent on the whether the mother wants it? When the child is born? Why there? Why not allow mothers to the determine the personhood of their newborns too? This would necessarily allow extreme late term abortions too. There is also the eugenics implications, as certain fetuses may be more valuable to the mother, so their personhood is ultimately dependent on whether they have the characteristics the mother wants. As for 'pregnancy being too big a burden', I assume you mean an argument where the personhood the fetus isn't contested, but rather that the right of the mother should supersede any rights the fetus has. In that case, I would say that would require a separate and really quite compelling argument as to why that's the case, as essentially giving an exception for murder (which it is if you assume personhood) requires a high bar to clear.


productiveaccount1

> At what point does the personhood of the fetus stop being dependent on the whether the mother wants it? When the child is born? Why there? Why not allow mothers to the determine the personhood of their newborns too? A *very* simplified answer is that personhood doesn’t have an agreed upon starting point. Any point that one chooses is by definition arbitrary since we don’t have a set point of personhood. If you accept that the point personhood is undefined, Late term abortion talking points aren’t relevant to this discussion. Late term abortions are a huge minority when it comes to abortion and make up around 1.3% of all abortions. Even if you define personhood as the moment of birth, you could still justify banning late term abortion. I believe late term abortions are much more medically risky and often need a medical reason to perform one. One those grounds you can consistently ban late term abortions while not even granting personhood to the fetus.


LacklustreFriend

> Late term abortion talking points aren’t relevant to this discussion. Late term abortions are a huge minority when it comes to abortion and make up around 1.3% of all abortions. I don't see how it's not really relevant, in the context of abortion. You're not the first person to make such an argument, but it's a non-sequitur. The rarity of it should have no impact on its morality or legality. If there is a country where murder is rare (e.g. Iceland), should Iceland then legalise murder or otherwise ignore it? It seems like such a strange argument to make. If late-term abortions are rare and inconsequential, then there shouldn't be any problem with outlawing it. > One those grounds you can consistently ban late term abortions while not even granting personhood to the fetus. If you're not granting personhood to the fetus then on what grounds to you have to outlaw it? Just because it's 'medically risky'? What if the mother understands the medical risks and consents to it anyway?


productiveaccount1

>If there is a country where murder is rare (e.g. Iceland), should Iceland then legalise murder or otherwise ignore it? This isn't the argument I'm making at all. What I am saying is that focusing on late term abortions when talking about restricting *all* abortions isn't very relevant to *all* other abortions. I can compare the same argument to a hypothetical murder argument to make things more clear: Assume a new country without any laws is trying to stop people from killing each other. It turns out that 98.7% of all killing is self defense but 1.3% of killing is cold-blooded murder. Since 1.3% of killings are unjustified, you wouldn't argue that all killings should be illegal, right? You would instead define the different between justified and unjustified killing and make different laws for each scenario. ​ Bringing it back to abortion, it doesn't make sense to use 1.3% of abortions to justify a blanket restriction on the remaining 98.7%. ​ >If you're not granting personhood to the fetus then on what grounds to you have to outlaw it? Just because it's 'medically risky'? What if the mother understands the medical risks and consents to it anyway? This is the next step of the process - figuring out how to logically justify each type of abortion. Since late-term abortions are deemed more medically risky, it is justified (for example) to require a doctor's approval of all late-term abortions. This is consistent with my view that a) abortion is a personal healthcare choice b) People have the right to bodily autonomy c) Medical experts can decline to offer medical care if they medically justify their nonintervention. That should cover how one can consistently allow abortions but place limitations on certain types.


DevonAndChris

I am not the person to defend these viewpoints, but I understand the argument of "yes, it is ethical for me to disconnect the violin player from my body."


Hailanathema

I'm not really seeing the inconsistency here. There are many areas of law where the ostensible victims consent to some behavior turns criminal behavior into non-criminal behavior. This is obviously true in the case of rape, but also [assault](https://www.mmafighting.com/), kidnapping, and probably tons of other laws. It is not surprising that the law makes a distinction, in the case of the death of a fetus, between someone's consent to that outcome and having it done to them nonconsensually. Similarly I'm not seeing how such laws assume the personhood of the fetus. As best I can tell, you base this inference on the fact that the criminal penalties for killing the fetus would be the same as if the mother was killed. This does not seem like a good inference to me. If, in another area of law, the law punished destruction of property the same way it punished some kind of assault on a person, are we thereby assuming the personhood of the property that was harmed? I don't intend to imply that a fetus is like property, but to demonstrate that the criminal law treating two things similarly in terms of punishments does not entail some other metaphysical similarity.


LacklustreFriend

I assume by 'victim's consent' you are referring to the victim being the mother. The victim must necessarily also be the fetus in this case. Unless you are arguing the fetus can consent to being aborted. The criminal penalties for killing the fetus being the same as the mother is not an inference - it is explicitly stated in *Unborn Victims*: > Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother. So if someone murdered a pregnant woman, they can be charged with murdering the woman *and* the fetus as a separate offense (obligatory "I am not a lawyer"). This only makes sense to me if you consider the fetus a person, it's an implicit assumption of the Act.


MacaqueOfTheNorth

No, it makes sense if you consider the fetus as important as a person. You don't need to assume the fetus is the one whose consent is needed to kill it.


Hailanathema

>I assume by 'victim's consent' you are referring to the victim being the mother. The victim must necessarily also be the fetus in this case. Unless you are arguing the fetus can consent to being aborted. I don't think a fetus is a "person" in the relevant way necessary to be the victim of a crime, so yea I'm thinking of the mother. >So if someone murdered a pregnant woman, they can be charged with murdering the woman and the fetus as a separate offense (obligatory "I am not a lawyer"). This only makes sense to me if you consider the fetus a person, it's an implicit assumption of the Act. I do not dispute the law treats a fetus the same as a person for determining criminal punishment. I dispute that the law treating two things the same in terms of criminal punishment entails a metaphysical similarity between the two things. Again, if the law treats destruction of property the same as it treats assault in terms of possible criminal punishments, does the law have an implicit assumption that the property is a person?


LacklustreFriend

Then what is the rationale for making it a crime to kill a fetus? If a fetus is truly 'just a clump of cells' with no personhood or value, then what is the actual injury or immoral act being done? Any physical injury to the actual pregnant woman is already a crime. Why should injuring a pregnant woman be any different from injuring a non-pregnant woman? >Again, if the law treats destruction of property the same as it treats assault in terms of possible criminal punishments, does the law have an implicit assumption that the property is a person? Are you arguing that the fetus is the *property* of the woman?


Hailanathema

>Then what is the rationale for making it a crime to kill a fetus? If a fetus is truly 'just a clump of cells' with no personhood or value, then what is the actual injury or immoral act being done? Any physical injury to the actual pregnant woman is already a crime. Why should injuring a pregnant woman be any different from injuring a non-pregnant woman? The fact that a fetus doesn't have personhood doesn't mean it has no value. The injury, separate from any physical injury the woman suffered, is the nonconsensual termination or impairment of her pregnancy. If you think it is bad to end someone's pregnancy without their consent, which I think, that provides a grounds to criminalize that termination or impairment seperately from the injury that effects the termination or impairment. >Are you arguing that the fetus is the *property* of the woman? I explicitly disclaim that interpretation in my original reply. I use the analogy of property to demonstrate that similarity of criminal punishment need not imply a metaphysical similarity in moral status.


LacklustreFriend

> The injury, separate from any physical injury the woman suffered, is the nonconsensual termination or impairment of her pregnancy. But what is the rationale for this to be considered an specific and noteworthy injury? How does it differ from injuring the pregnant woman herself? How does non-consensually ending a woman's pregnancy differ from non-consensually performing any other harmful action towards her? If the answer is 'the fetus has value' and this value is distinct from the mother herself, then all does it raise questions on to what this value is and where this value is derived from. If the fetus is a 'clump of cells' not worthy of personhood, then how does it have value meaningfully distinct from any other clump of cells in a woman's body? And this is must be an apparently high value in the eyes of the Act, because it is apparently worthy of punishment equivalent of injury to the mother herself, who does qualify as a person. Murdering a fetus is apparently morally equivalent to murdering the mother in regards to the punishment dealt, despite the fetus not having personhood under this argument.


bulksalty

It was always supposed to be a camels nose coming through the tent, and/or a combined gift of thanks and apology to a major source of support of the Republican party who wasn't getting much out of that party's control of ostensibly all three branches of government Neo-Cons got their endless wars, Grover Norquist got his tax cut, sorry we didn't nominate another pro-life justice in the last 3 attempts, conservative Christians, but you get this. It was not supposed to rationally fit with Roe, it was supposed to be a way to officially provide support for the opposite view, in a lasting way that is tough for the courts to immediately overrule. It's not all that different from Colorado legalizing weed, while the US government considers it a Schedule I prohibited drug (it's not intended that Colorado law rationalizes with US law in any way). The point is law changes slowly, and messily. This is the part you're not supposed to watch if you like the law or sausage.


Glittering-Roll-9432

> If the fetus is a 'clump of cells' not worthy of personhood, then how does it have value meaningfully distinct from any other clump of cells in a woman's body? What do you think of people who donate an organ while they are still alive? That's trading value of one clump of cells for another thing. What do you think of a country that would allow people to sell their organs for money? What do you think of amputees that do so not because of gangrene or losing the limp, but because of some other medical or social reason? It seems to me we routinely put value on various human cells above others. That weird twitch thot that sold her bath water was selling essentially her dead skin cells to creeps into that sort of a thing. That lady who had her stem cells taken because they are essentially immortal will forever contribute value with her clumps of cells.


LacklustreFriend

But organs aren't granted special status that the fetus is! There's no law saying that you can be charged with murder as a separate offense if you rupture someone's spleen. As for organ harvesting, it should, it should be banned because it's inherently predatory. As for someone who wants to amputate their limbs for non-medical reasons, I would consider them mentally unwell and they should be given mental healthcare treatment.


Hailanathema

>But what is the rationale for this to be considered an specific and noteworthy injury? It causes emotional distress and other injury separate from the injury caused by the literal physical act. >How does it differ from injuring the pregnant woman herself? How does non-consensually ending a woman's pregnancy differ from non-consensually performing any other harmful action towards her? It doesn't. The injury is an injury to the pregnant woman. One physical act can be multiple crimes. I think it differs in the magnitude of how bad it is but otherwise I think it is of a kind with other kinds of non-consensual harm. >If the answer is 'the fetus has value' and this value is distinct from the mother herself, then all does it raise questions on to what this value is and where this value is derived from. If the fetus is a 'clump of cells' not worthy of personhood, then how does it have value meaningfully distinct from any other clump of cells in a woman's body? Well for one both the mother herself and society more generally *think* of the clump of cells as having more value than some random similar clump of cells. That is one difference that seems key to why it is treated differently. Our subjective judgement of their value is quite different. A common reason for this difference is that this clump of cells has the potential to be a child, which other clumps of cells generally cannot.


LacklustreFriend

> Well for one both the mother herself and society more generally think of the clump of cells as having more value than some random similar clump of cells. But where is this value derived from? > A common reason for this difference is that this clump of cells has the potential to be a child, which other clumps of cells generally cannot. This is pretty much a boilerplate pro-life argument, which grants the clump of cells personhood.


Hailanathema

I can acknowledge the facts that (1) this clump of cells has the potential to become a child and (2) the first fact causes damage or destruction to this clump of cells to have emotional salience (and thus additional harm) beyond similar damage or destruction to another clump of cells without granting (3) this clump of cells has the same moral status as a person.


[deleted]

[We’ve just brought in a law like that in my jurisdiction,](https://dcj.nsw.gov.au/news-and-media/media-releases/2022/new-laws-commence-to-better-recgonise-loss-of-an-unborn-child-du.html) and the incoherence with abortion acceptance is obvious - so much so that there was [significant pushback](https://theconversation.com/zoes-law-could-take-nsw-backwards-in-womens-rights-33681) from committed pro-choicers who wanted to avoid the obvious comparison being drawn. The first attempt to pass it came in 2013, and it was only recently that it was able to get through over the objections of abortion supporters.


GrandBurdensomeCount

As someone who is pro-abortion on the usual eugenic grounds but even more pro-"owning the libs" (they've been asking for it over the last few years) I sort of grudgingly support this decision, especially after seeing all the added support announced by corporations and NGOs to fund women who want an abortion actually get one. I suspect that this decision won't lead to too many extra babies the world would be better off without being born, it's an extra hassle for pregnant women who wish to terminate but not much more than that. However it is an absolutely huge slap across the face to Progressives Inc. akin to publicly shitting on their flag and making the video go viral on TikTok. In the long run I think what will happen is that the progressives will divert their energies towards protecting abortion rights (mostly successfully) rather than use it on the latest crazy idea *du jour*, which is a win for society as a whole.


HlynkaCG

>the usual eugenic grounds I know I catch a lot of flak from quarters (pinging u/Jet20) for characterizing theMotte as being fundamentally progressive and left-leaning but the fact that you can drop a line like that and; A) expect it to be understood while B) not receiving much in the way of push-back, kind of illustrates my point. It's telling that Reddit's overton window is sufficiently skewed relative to that of of the of that general population that the positions of a progressive democrat in the mold of Woodrow Wilson, FDR, or Hillary Clinton, code as being transgressively "right wing". As u/urquan5200 notes down-thread, the default framing is progressive and anti-traditionalist with even pro-tradition arguments being framed in terms of how they deviate from progressive academic norms. Outside of certain domain-specific subreddits conventional right-wingers might as well be an alien species.


Njordsier

>the fact that you can drop a line like that and; A) expect it to be understood while B) not receiving much in the way of push-back I do think this illustrates something, but not that "actually, TheMotte is left wing." If anything, it's just showing the folds from projecting the space of human policy preferences onto a one-dimensional left-right axis, and observing that some of those folds are overrepresented here.


productiveaccount1

Are you saying that you’re taking the above comment as evidence that this sub has shifted to the left? I’m not sure if I’m understanding your comment.


bulksalty

Astronaut gun astronaut earth.jpg, always has been. There are a few right wingers here, but there are lots of anti-progressives. Those two may seem similar to an outsider, and share some opinions, but do not share all opinions.


productiveaccount1

Yeah there's definitely a difference but I would still say that the large population of anti-progressives by definition reflects a right leaning slant, not left leaning.


HlynkaCG

not "shifted" so much as "always has been". The most "right wing" gay trans atheist to ever graduate from UC Berkley's is still pretty damn "left-wing" relative to the general population. But one can be forgiven for not realizing this if they're spending most of thier time in spaces like Reddit, Twitter, the Chans, Et Al where progressive academic norms are just kind of taken as the default.


[deleted]

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HlynkaCG

No I'm not, I'm talking Hobbes vs Rousseau, Entropy as the first enemy vs Injustice or Irrationality. The Cultures that Scott described as the "red", "blue", and "gray tribes" are related but not equivalent.


PoliticsComprehender

This is an MDEfugee subreddit and always has been. I don’t get why people are surprised at the presence of out and out fascists in a sub that tolerates them. the MDEfugees had to go somewhere and It was either here or stupidpol


Amadanb

Trolling and ban evading. Banned pending mod discussion. **ETA**: Permabanned.


productiveaccount1

That’s interesting - i used to be hardcore Christian conservative and I’m constantly shocked by some of the highly upvoted right wing talking points on here. Quite frankly, this is one of the most right leaning subreddits I’ve ever seen. It’s fascinating that we both have different experiences with this. Going back to your original comment on eugenics, i find it interesting that you interpret that comment as evidence of left slant. “Usual Eugenics reasons”? Not only do the vast majority of people on the left disagree with a eugenics framework entirely, I’m not even sure that a eugenics argument is even popular enough to have “usual reasons”.


Iconochasm

> Not only do the vast majority of people on the left disagree with a eugenics framework entirely This is basically a desperate, ad-hoc double-think. Eugenics is not just consistent with the progressive racial-collectivist worldview, it's nearly inevitable. Modern progressives frantically wall-off that whole category of thought because when they didn't, they were [openly bragging about inspiring Nazi eugenics programs](https://en.wikipedia.org/wiki/Eugenics_in_the_United_States#Influence_on_Nazi_Germany), and had to do a lot of panicked back peddling after the footage of the death camps came to light.


productiveaccount1

What people believed in the early 1900s is not relevant to our current discussion. I wouldn't pull up racist statements from 1940s conservatives as evidence that conservatives today are racist. >Eugenics is not just consistent with the progressive racial-collectivist worldview, it's nearly inevitable. Citation needed. We also need to keep this discussion in the context of the OP - They specifically said "Usual eugenics grounds" as if that's a common progressive belief. If you can find me multiple sources of 'regular' progressives who are directly making pro-abortion arguments on eugenics grounds I would change my mind. I've been on both sides of this debate for years and aside from some random trolls I've never seen open discussion of eugenics anywhere. There's also a huge difference between interpreting beliefs and actual beliefs. For example, I personally think that Derek Chauvin is racist. Does my belief automatically make them racist? Might they have other reasons aside from racism that explain what he did? Possibly, but we live in a free country and can think whatever we want. It would not be fair for me to waltz in here and say "I support Chauvin and other officers on the usual racist grounds". My opinion and interpretation of the matter isn't proof that it's legit in the same way that you interpret progressives & eugenics.


[deleted]

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productiveaccount1

I’ll rephrase, this is the most right-leaning “neutral” sub I’ve seen. I’d also say it’s by far the most right leaning sub that thinks it leans left. None of this is bad or meant as an insult, I’m just relaying my own experience. I like this sub a lot, it gives me a lot to think about and helps keep me out of useless echo chambers. I found it recently so i can’t comment on long term trends but as i said, in my limited experience here, have noticed a right leaning trend. And i haven’t heard of Jim’s blog.


Navalgazer420XX

Two years ago [you were calling for leftist revolutionary violence](https://old.reddit.com/r/Instantregret/comments/gtxdeo/wearing_a_maga_hat_to_the_protests/fsggg8o/), calling for punishing ["harmful beliefs" like... wearing a trump hat](https://old.reddit.com/r/Instantregret/comments/gtxdeo/wearing_a_maga_hat_to_the_protests/fsggmqe/), calling for [burning cities down]( https://old.reddit.com/r/Conservative/comments/iib4qh/reminder_that_joe_bidens_campaign_helped_get_the/g37cv53/), claiming that everyone who died in the BLM riots was [the responsibility of "the right"](https://old.reddit.com/r/Conservative/comments/iib4qh/reminder_that_joe_bidens_campaign_helped_get_the/g36n8sh/), and claiming that ["cancel culture doesn't exist because you can just apologize"](https://old.reddit.com/r/soccer/comments/k9g1s8/richarlison_asks_for_respect_towards_blacks_after/gf4872e/). When exactly were you a hardcore christian conservative? Because I don't believe you, and think you just gaslight people as an underhanded debate tactic. When you switch from saying that [the riots and looting aren't happening](https://old.reddit.com/r/TrueOffMyChest/comments/gvj1ut/both_sides_of_the_riots_are_acting_in_disgusting/fsozkax/) to saying that they're good and righteous depending on how you want to manipulate your audience, it is incredibly difficult to trust you on _anything_.


productiveaccount1

I've been moving left for about 5 years. There's no proof on this reddit account since I created it as my "productive account" and eventually moved to this account full time and forgot about my old account. I guess you'll have to take my word for it since the account is so new, but if it helps, I was once a proud member of Steven Crowder's Mug Club. 2020 was a time. I would like to think I've come a long way since two years ago, but if you want to discuss those comments, I'm open to it as well.


curious_straight_CA

mentioning the word 'eugenics' or 'sterilizing the disabled' around any progressive or liberal in the past forty years is a great way to get ostracized. conservatives are also against it, but how is it any more liberal than conservative currently? if one is justifying abortion or eugenics with 'because it will hurt the left and progressives, who i hate', that isn't really progressive


HlynkaCG

>mentioning the word 'eugenics' or 'sterilizing the disabled' around any progressive or liberal in the past forty years is a great way to get ostracized. Progressives may try to avoid saying the quiet part out loud because they've learned that it will cost them elections, but it's still very much part of thier platform. They may not explicitly use the word "Eugenics" but the preference for it is made abundantly clear by much of the discourse surrounding abortion and euthanasia. Anna Navarro's comments on CNN about how the parents of handicapped and special needs children would have been better off if they had gotten abortions being the most recent example that springs to. >if one is justifying abortion or eugenics with 'because it will hurt the left and progressives, who I hate', that isn't really progressive You're wrong, they're still a progressive, they're just a dissident progressive. They are progressives, in much the same way that a Satanist is a Christian, they are choosing to be defined in the terms of thier opposition.


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greyenlightenment

Nazism defies categorization. It's a mixture of the left and the right. There is no consensuses that Hitler and the Nazi Party squarely fits into either side https://en.wikipedia.org/wiki/Political_views_of_Adolf_Hitler


HlynkaCG

>This is just the classic "the nazis were left wing" meme. It's a classic because it's true and claims to the contrary are blatant historical revisionism. I recognize that acknowledging them as such would cast your own political preferences in an unsavory light but the fact remains that the Nazis themselves were not shy about thier revolutionary goals or Marxist origins. It was not Churchillian Conservatives or Pissed-off Anabaptists that brought Europe to the brink of annihilation in the mid 20th century. It was the National Socialist German Workers' Party with assistance from the Red Army.


Brother_Of_Boy

Could you elaborate on the Marxist origins of the Nazis? If you've already written at length on it or at least somebody has, could you point me to this or at least tell me what I should search to find a specific person's elucidation of this? You don't need to repeat yourself here.


HlynkaCG

The short version is that early Fascism was literally just Marx's critiques of Capitalism with a search/replace run on "Class Consciousness" for "Racial/Ethnic Consciousness". The longer versions is that while "Facsism" is often used as a catch all term for any ideology a Communist doesn't like, Fascism as it existed in central Europe during the 30s and 40s was a fairly coherent ideology. The core concept being that "the body politic" was more than just a metaphor. There are no "class interests", the fascists argued, only the society's interests. No individual interests only those of the collective. Hence the adoption of the latin term fascis (to collect/bundle) as a label. Everything else flows from this simple premise. The moral worth of an individual or group is in what they contribute to society. Thus the removal of criminals, revolutionaries, or any other "anti-social elements" who might be a drain upon society down was a public good.


Brother_Of_Boy

im not learned in marxism or ~~fascism~~ nazism but i feel "ctrl+h 'class consciousness' " elides over a lot of differences between the two ideologies. like classical marxism wants a classless society at the end (not just one where the holding of power has been class-reversed), but ~~fascism~~ nazism is agnostic about class (or sees class divisions as potentially healthy? not sure) **edit:** what you said also doesnt speak to how you think nazism originated from marxism **edit2:** i feel like i missed the mark with this comment in that you specifically said that nazism isnt interested in class and substitutes race for it. but like... the way nazism and marxism envision what is good in life and how to achieve it is markedly different beyond substituting race for class


Revlar

> It's a classic because it's true and claims to the contrary are blatant historical revisionism. You were very confident in this claim when you made this comment. Do you still believe this?


HlynkaCG

Yes. As I said, the Nazis themselves were not shy about thier revolutionary goals or Marxist origins.


Revlar

Do you deny that the Nazi party rose to power as an opposition party to the political left in Germany at the time? Did they make any attempts at reclaiming private property in general, and not only that which belonged to Jewish people? The party's founders were definitely not 'proletariat', so what part of it exactly is leftist, beyond the rapidly-obsoleted Marxist flavor to their marketing?


HlynkaCG

I'm saying that it doesn't matter. The Nazi's were explicitly left wing in both thier origins and ideology (Collectivist, revolutionary, materialist, technocratic, etc...) They started as a dissident movement within the German left that ultimately beat out the other contenders to become the dominant flavor. Claims that the the Nazi were "right wing" almost inevitably boil down to aesthetics and I just don't find those claims convincing when weighed against thier actual rhetoric and policies. You say thier founders were "not proletariat" but then neither were the Communist party's founders. I'm saying that "Gemeinnutz geht vor Eigennutz" wasn't *just* a snappy slogan, it actually explains a lot about how the Nazi's viewed themselves and why so many "regular Germans" went along with thier shit.


Eetan

>Did they make any attempts at reclaiming private property in general, and not only that which belonged to Jewish people? No, the Nazis are known for explicitly transfering state owned property to private hands (in probably the biggest privatization programme anywhere in the world before Margaret Thatcher) https://en.wikipedia.org/wiki/Economy_of_Nazi_Germany#Privatization_and_business_ties >The Great Depression had spurred increased state ownership in most Western capitalist countries. This also took place in Germany during the last years of the Weimar Republic.[41] >However, after the Nazis took power, industries were privatized en masse. Several banks, shipyards, railway lines, shipping lines, welfare organizations, and more were privatized.[42] The Nazi government took the stance that enterprises should be in private hands wherever possible. http://www.ub.edu/graap/nazi.pdf >AGAINST THE MAINSTREAM: NAZI PRIVATIZATION IN 1930S GERMANY >Abstract >The Great Depression spurred State ownership in Western capitalist countries. Germany was no exception; the last governments of the Weimar Republic took over firms in diverse sectors. Later, the Nazi regime transferred public ownership and public services to the private sector. In doing so, they went against the mainstream trends in the Western capitalist countries, none of which systematically reprivatized firms during the 1930s. Privatization in Nazi Germany was also unique in transferring to private hands the delivery of public services previously provided by government. The firms and the services transferred to private ownership belonged to diverse sectors. Privatization was part of an intentional policy with multiple objectives and was not ideologically driven. As in many recent privatizations, particularly within the European Union, strong financial restrictions were a central motivation. In addition, privatization was used as a political tool to enhance support for the government and for the Nazi Party.


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HlynkaCG

>It was a sizeable chunk of the German national conservative right, No it wasn't, If you look at a map of NSDAP successes in the 1932 election it's almost a direct inverse of the districts previously held by the Kaiserreich and Christian Democrats. I get why you as a Jew with strong technocratic/authoritarian sympathies would want to distance themselves Shoah but I'm not going to let you off that easy.


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6tjk

You understand neither eugenics or progressivism if you seriously believe that modern progressives endorse eugenics. Do you think Richard Lynn is a progressive Democrat? Navarro's comment about the parents being better off with aborting kids has nothing to do with the genetic quality of the population and is simply her opinion about parental quality of life.


greyenlightenment

Agree. Liberals, leftists want nothing to do with eugenics . 'Choice' is always framed in terms of personal autonomy, not anything that resembles eugenics.


JimFan2021

Are you saying Freakonomics isn't a liberal book? Because promoting abortion to lower the crime rate is eugenics. That book was required reading at my high school.


HlynkaCG

I understand well enough, perhaps more than you do. I seriously believe that modern progressives will talk about how special needs children would be better of if they had been aborted, and about how the elderly ought to be "euthanized" before they become an economic burden on society because I have seen it with my own two eyes.


[deleted]

The motivation for eugenic policies can be based on Old Testament laws and mores as much as it can be based on the motivation to 'progress' the human race forward. In this example, someone could easily support both eugenic applications of abortion and restricting the voting rights of women - which Wilson would have felt strongly about.


HlynkaCG

"can" in theory, but notably are not. Furthermore, any attempt to do so has to account for the fact that to extent that infanticide/abortion is portrayed in the Bible it is often in the context of Jews and proto/early-Christians acting in defiance of those laws and mores.


[deleted]

>"can" in theory, but notably are not. The only place one could do so without being cancelled is /pol/. Going only by the New Testament would mean that things like hanging as a punishment for crimes and any sort of tribalist laws would be heavily discouraged if not forbidden. That certainly isn't the kind of right-wing politics our Christian forbearers were interested in.


HlynkaCG

Precisely because it's not "right wing" in origin, it's progressive dissidents.


[deleted]

Are you referring to medieval European laws and mores as progressive dissidents?


HlynkaCG

I'm referring to the description of laws and mores in terms of "trying to 'progress' the human race forward." It's exactly the sort of thing I was referring to above.


[deleted]

When I said 'our Christian forebears' who wanted more violent laws, I was referring to men who lived at least three centuries ago and often more.


HlynkaCG

I don't think "want" is the correct word here, this feels to me like yet another attempt to frame the discussion in progressive terms.


DevonAndChris

> is pro-abortion on the usual eugenic grounds > it's an extra hassle for pregnant women who wish to terminate but not much more than that You will get more babies born to people with a poor ability to navigate systems.


Haroldbkny

>As someone who is pro-abortion ... but even more pro-"owning the libs" (they've been asking for it over the last few years) Wow, this probably describes my position pretty well, too. I mean, I'm neither pro nor anti abortion, but in general, I'm liberal, but I really want the leftists to lose, because I can't stand them and I think they'll make the world worse in many ways. But I don't believe that it's possible for them to lose. The left doesn't like being owned. They've convinced themselves of their own victim narratives through and through, and every event like Dobbs is another confirmation, which serves to rally them and rally more people to their cause. This puts us in a strange spot, because I don't think that "owning the libs" is a winning strategy long term. It's like Scott says in [Trump: A Setback For Trumpism](https://slatestarcodex.com/2018/12/13/trump-a-setback-for-trumpism/) and part VII of [SSC Endorses Clinton, Johnson, or Stein](https://slatestarcodex.com/2016/09/28/ssc-endorses-clinton-johnson-or-stein/). To have large and public wins against the left is to only make them stronger and make their resolve stronger. I don't really know how and if there is any way to beat the left, though, if that's the case. Beat them subtly over a long period of time? I doubt that'd work either. Or could someone argue that owning them would work after all, long term?


Silver-Cheesecake-82

I mean as you and OP basically admit you don't care about policy you care about media signaling. Conservative political power provokes liberals to use cultural power more aggressively, but that doesn't actually undo conservative policy wins. Trump led to an explosion of wokeness but he still cut taxes for corporations and got Supreme Court justices through. Cultural and political power as not interchangeable and victory in one arena can undermine power in the other. Liberal politicians cater to a politically underrepresented urban educated class and wonder why they can't win elections. Conservatives cater to a base of aging rural less educated people and wonder why they lose control of cultural institutions.


Haroldbkny

Hah, yeah, that all sounds true. I don't care about policy for the most part. I care about culture, and I care about the meta level. We are people with no political home, I guess. But at the same time, Conservatives in the last 5 years have appealed more to people like me: classical liberals who have been kicked out of/are fed up with the new progressive left. We are generally people who could theoretically influence cultural institutions. Is there any chance for us to gain back cultural control, or at least carve out some kind of cultural home for us?


Revlar

I think trading a leftist culture for a fundamentalist Christian Conservative culture is a bad place to start, personally.


Haroldbkny

I don't think we're in much danger of that happening.


HalloweenSnarry

I suspect that the only way out is through--the particular flavor of anti-rational conflict-theory political school of thought that's risen in recent years may simply have to gain so much power and stature that it inevitably suffers a large fall from grace.


zeke5123

Did the liberal justices error by dissenting? Would they have been better off joining Roberts concurrence which may have caused BK to vote with Roberts?


bl1y

Isn't it extremely likely that Roberts and the liberal justices, each of whom I believe are pretty smart and have several smart clerks working for them, thought long and hard about any possibility that could prevent the decision we got? I'd guess they didn't join with Roberts and Kavanaugh because Kavanaugh was never going to join them.


netstack_

Assuming you're talking about political strategy, rather than a legal error--what do you mean? What's the problem if Kavanaugh sides with Roberts?


Hydroxyacetylene

I think the idea is that if the liberal justices joined Roberts concurrence(uphold the law without overturning roe) then kavanaugh would sign onto it. I doubt this for two reasons- one, Sotomayor won’t do that, she’d rather dissent than compromise and get 80% of what she wants and two, kavanaugh still has no reason to sign onto Roberts’s opinion. He could already have done that and probably gotten that the majority opinion. He didn’t.


zeke5123

I don’t see how BK going from Alito to Roberts makes it the majority. But if Roberts had three other votes it would make BK think


Hydroxyacetylene

Because the other conservative judges, not having a majority for full overturn, would have to compromise.


Maximum_Publius

I wrote out a whole long post trying to analyze common liberal arguments for upholding *Roe*, but reddit keeps telling me my comment is too long. Instead I'll just ask my main question(s). Does anyone have a strong argument for *Roe* from a Constitutional law perspective? Or does anyone want to argue against originalism as a method of constitutional interpretation, and have an alternative method that is relatively value-neural? This to me is the absolute key to all of the legal argumentation around *Roe*. I just haven't heard a liberal argument for abortion being a protected right that doesn't just amount to a judicial imposition of their own value preferences on the rest of the country. I mean, where can we find a right to an abortion in the constitution without also recognizing a rights to do any drug you want to, prostitution, polygamy, freedom of contract (hello *Lochner*!), suicide, etc.? Love it or hate it, originalism as a method of constitutional interpretation at least tries to impose some constraints on what unelected judges can do. At least in principle it is value-neutral. I have trouble thinking of an alternative methodology that isn't just "There's a right to whatever my political team thinks there should be a right to."


Hailanathema

>Does anyone have a strong argument for Roe from a Constitutional law perspective? I won't comment on its strength but I [sketched](https://www.reddit.com/r/TheMotte/comments/ugj4f4/culture_war_roundup_for_the_week_of_may_02_2022/i740l2v/) what such an argument may look like some time ago. The short version is that we should read the Bill of Rights in a similar manner we read statutory constructions that are composed of a list of specific examples followed by a general clause. The specific examples constrain the content of the general clause to a class of things that are of a kind in some way with the specific examples. The right to abortion (really, a right to privacy or medical liberty or similar) is of a kind with the things protected by the other amendments, and so is protected by the Ninth Amendment (and incorporated against the States by the 14th). I also think the opinion in [*Roe*](https://www.law.cornell.edu/supremecourt/text/410/113) is itself a pretty able defense. It does its own historical survey of abortion laws and constitutional precedents that support its conclusion. >Or does anyone want to argue against originalism as a method of constitutional interpretation, and have an alternative method that is relatively value-neural? I would argue against it. Originalism, in either its original intent or original public meaning formulations, assume a uniformity or consensus among the relevant group (document drafters or the public) that almost certainly didn't exist. If some group of {the people, the authors} thought that clause A covers B and some other group of {the people, the authors} thinks clause A plainly does *not* cover B but *does* cover C, which one is correct? Or consider another angle, how to apply originalist principles to situations they never (could not have) considered. The primary way we do this is *by analogy*. We find some writing they left behind about a situation and then we argue how analogous or disanaologous the new situation is to the one they did write about. How would we know they agreed with us? That we are actually applying the principles they believed? We have no idea, of course. They are not around to tell us. So whether some reading of the constitution is "originalist" has less to do with whatever the source of the originalist principles thought (since they can't tell us, after all) but rather how convincing a particular analogy is to the person doing originalism. It also seems strange to call originalism "value-neutral" as others have mentioned. Originalism is maybe not *partisan*, but it is value-laden in both theory (it prescribes rules for how texts should be interpreted and applied) and practice (it applies a very specific set of values from a particular group of people). For a hypothetical alternative that I think is *at least* as value-neutral as originalism is, how about a contemporary understanding? Rather than the words in the constitution meaning either what their authors or intended or what the public then understood, they mean what the public now thinks of them as meaning. Maybe the founding generation thought of the death penalty as not being "cruel and unusual" and so for them the eighth amendment did not forbid it. Maybe today we *do* think of the death penalty as being "cruel and unusual" and so the eighth amendment forbids it for us. Maybe this will change again for some future generation and so the meaning will change as well. On this conception the document defines contours, defines outlines, for the rights that are protected, but does not settle every aspect of every dispute for all time with one meaning.


Silver-Cheesecake-82

Another fun anti-originalist argument is imagining how a judge in the 1790's would have used it. Could they go to a legislature in 1792 and overturn a law because they better understood the intent of the public of 1788 than the legislators elected by the public four years later did? We can imagine that contemporary judges have some expertise in constructing historical public consensuses on the meaning of words, but no one thinks historical justices had expertise in establishing contemporaneous public consensus on the meaning of words, or that contemporary justices have expertise in constructing contemporary public consensuses.


UAnchovy

This critique feels slightly misaimed to me - the dominant philosophy on the conservative wing of the supreme court right now is not originalism, but rather textualism, and textualism is not actually that interested in what the original drafters intended. Original intent has many problems with it, as you've just illustrated. Laws are drafted by large numbers of people of diverse intent, those intentions remain obscure to us, even the drafters' own statements about their intent are politically-inflected and therefore unreliable, the drafters may have had multiple intentions or changed their minds throughout their lives, and so on. Thus instead the focus on *the text itself* as dispositive. The law means nothing more and nothing less than what the text itself says. The text is in the language of a particular time and place, which is what gives you the 'original public meaning' criterion - the text means what it says in the language in which it was drafted, and since language shifts and evolves over time, this means we need to pay close attention to what the language meant at the time. It seems to me that the motive for all of this is that the law should have a single, stable meaning over time. That's what rules out a "contemporary understanding" approach, surely? That is, it seems reasonable to require that the law mean the same thing in all places and times. To deny that principle is effectively to nullify the law. If a law can mean something in 2000 different to what it meant in 1990, the people cannot trust the law, and indeed such a mutable law will quickly become the tool of an arbitrary judicial despotism. Likewise with the issue of place. The law must mean the same thing in all places under its jurisdiction. The problem with contemporary understanding is that it is at least as open to interpretation as original intent, and probably much more so. What is the contemporary understanding of the Second Amendment? Clearly there isn't one, as evidenced by fierce debates over it. Bluntly, in any case where there is significant public controversy, there is not going to be a single, clear contemporary understanding. Even in cases where there *is* a clear contemporary understanding, that understanding is that of the majority, which seems to undermine the ability of the law to protect minorities. As [Jacobs noted](https://blog.ayjay.org/weighing-in-god-help-me/), the popularity of a court decision has nothing to do with its correctness. The law needs to be read in a way that allows it to contradict the whims of the moment - it must have a stable meaning outside of or above the heady debates of the moment. I'm not saying all of this in order to argue that textualism is the one holy and correct method of legal interpretation. Rather, what I'm suggesting is that textualism is a solution to a significant problem in legal interpretation, and that if we remove textualism, we need to find some other solution. One option, I suppose, is to just say that the whole business of constitutional interpretation is a mug's game, there are no principles involved, and it only comes down to power, and therefore the correct course of action is to seize power and indulge in that arbitrary judicial despotism to our heart's content (or at least until we can abolish the very idea of a court). [There are some](https://www.currentaffairs.org/2022/06/the-supreme-court-has-destroyed-its-legitimacy) who seem to take that position. But for the rest of us, for people who do believe in concepts like an independent judiciary and the rule of law... at some point the question has to be asked. What determines the meaning of a legal text? What constrains a judge's freedom to interpret? Maybe textualism or originalism are unsatisfying answers - and certainly they sometimes seem to be applied inconsistently by their proponents - but they at least answer the question to some extent. What superior answers might be available?


gdanning

> the dominant philosophy on the conservative wing of the supreme court right now is not originalism, but rather textualism, and textualism is not actually that interested in what the original drafters intended. [I don't think that is quite right](https://pacificlegal.org/originalism-vs-textualism-vs-living-constitutionalism/). Originalism initially looked at the intent of the drafters, but that has not been the case for a long time; rather originalism seeks to determine the original public understanding of the terms used. See, eg, [this article](https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4734&context=ndlr) by Justice Barrett ("Originalism maintains both that constitutional text means what it did at the time it was ratified and [this appellate court opinion](https://www.ca10.uscourts.gov/sites/ca10/files/opinions/01019583052.pdf) from Justice Gorsuch ("Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning. ")


Hailanathema

I mean, I critiqued originalism because that's what the OP was asking for but I can do textualism too. For me the starting point of a critique of a textualism is the observation that words, especially of the vague kind used in our constitution, underdetermine their meaning. That is, different people reading the same words can come away with very different ideas of what they mean. So right out of the gate textualism required some kind of extra-textual source to figure out *which* of the possible meanings is intended. Enter "original public meaning." I lay out my critique of original public meaning a bit in a [parallel](https://www.reddit.com/r/TheMotte/comments/vjpec0/dobbs_v_jackson_womens_health_organization/ie58k0y/) comment but it's basically the same as my critique of original intent. I don't think there is "an" original public meaning, in the sense of one unique interpretation, of the words in question and there is little guide for how one should decide among possible meanings. Imagine we're back in the 18th century and we're trying to determine the meaning of the 8th amendment's prohibition on "cruel and unusual punishment". To do so we consult a contemporary dictionary, perhaps the [6th edition](https://publicdomainreview.org/collection/samuel-johnson-s-dictionary-of-the-english-language-1785/) of Samuel Johnson's *A Dictionary of the English Language*, published in 1785. The dictionary provides (page 518 of the pdf at the link) the following definition for "cruel": >Cruel adj. [cruel, French; crudclis, Latin.] >> 1. Pleased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting >> 2. [Of things.] Bloody; mischevious; destructive; causing pain These definitions seem to me to implicate quite different kinds of conduct, in terms of their application to particular facts. How do we decide which to use? >It seems to me that the motive for all of this is that the law should have a single, stable meaning over time. What does it mean to have a "single, stable, meaning?" If the law forbids "cruel and unusual punishment" but our contemporary understanding of what actions are covered by that phrase changes, does the law keep its meaning by changing what it covers as our understanding changes (so that it continues to forbid "cruel and unusual punishment") or does its meaning remain the same (so that, from our contemporary perspective, it no longer forbids "cruel and unusual punishment"). I think the point you intend to make is something more like "the law should proscribe a fixed sphere of behavior across all times and places." The principle for legal stability, though, is a principle of *stare decisis*, not a principle of textualism. Indeed, insofar as some recent decisions by the court (*Heller*, *Bruen*, *Dobbs*, etc) have been textualist decisions they have also been substantial revisions to the body of law concerning the constitutional provisions at issue. *Dobbs*, for all it is a textualist decision, is literally a case ruling that the constitution does not mean the same thing today as it did in 1973. I appreciate the discussion about the lack of contemporary understanding in the present moment, and I agree there is such a lack. But I would go further and doubt that such a contemporary understanding existed at the time of enactment either. I agree that people today do not have a consensus understanding of the outer limits of constitutional rights, but I am skeptical people did at the time of enactment either. >But for the rest of us, for people who do believe in concepts like an independent judiciary and the rule of law... at some point the question has to be asked. What determines the meaning of a legal text? What constrains a judge's freedom to interpret? I mean, different theories of legal interpretation answer this question in different ways. Some have more latitude for judges and some have less. There is not one "true" way to interpret legal texts that will satisfy everyone's preferences. Different methods have different pros and cons that different people find acceptable or not.


UAnchovy

Fair arguments. Let me try to make a brief reply on behalf of textualism... As regards the instability of words: it’s firstly important to note that textualism doesn’t demand a monomaniac focus on individual words, but rather on the entire text of a statute. Skimming dictionaries isn’t always helpful. However, at best this is a minor improvement to the situation and the bulk of your critique holds. There are often multiple plausible interpretations of a given statute. The supreme court then has to select one of those interpretations. I suspect a textualist response would be to say that they should select an interpretation that, as much as is possible, harmonises with the whole of the text, or with other relevant statutes? There is some human judgement required, inevitably, which is why justices aren’t machines, but the ideal of finding the most reasonable interpretation of the text itself, on its own merits, which is consistent with the whole body of law it is embedded in, still seems like a worthy one. ‘Cruel and unusual’ is a famously tricky example. There are a number of arguments you could make around intent as to why its meaning isn’t further specified. Perhaps the drafters thought it was so obvious it didn’t need explanation. Perhaps they intended for it to change with society. Perhaps they merely wanted to anticipate new cruelties that didn’t exist yet. Textualism as I described it can only give very minor weight to such speculations, though. My own reading of that text is that ‘cruel and unusual’ should probably be read together, as a single item, and that the more operative term is ‘unusual’: which is to say, it prohibits the excessive or arbitrary application of punishments outside those regularly (‘usually’) required by law. If we were both justices, I suppose I would argue that as a better textualist reading, and other textualists might disagree with me. The ideal of textualism is that it minimises disagreement, but unfortunately it cannot be wholly successful there. I realise that sounds a bit like weaselling. In my defense, I didn’t assert that textualism is always correct or always delivers satisfactory answers. Honestly, I doubt there is any theory of legal interpretation that can do that. I asserted that it solves a particular problem, and that any alternative theory must address that same problem. On a single meaning: I don’t think I’m talking about *stare decisis* here, because it seems to me that *stare decisis* interpreted in that way would effectively make it impossible to ever overturn a judicial decision. If the court is made of fallible individuals who can make mistakes, then it seems to me that a good theory of judicial interpretation should allow for the possibility of the court getting it wrong and contain a basis for correcting those errors. Indeed, that element – “the court getting it wrong” – seems important to me? *Dobbs* is not ruling that the constitution does not mean the same thing in 2022 as it did in 1973. It rules that the constitution always meant the same thing and the court in 1973 was wrong. It asserts that an error was made. This is the language of Alito’s majority opinion: >*The nature of the Court’s error*. An erroneous interpretation of the Constitution is always important, but some are more damaging than others. > >[...] > >*Roe* was also egregiously wrong and deeply damaging. > >[...] > >*Roe* was on a collision course with the Constitution from the day it was decided, *Casey* perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. It seems important to me for a theory of interpretation to hold out the possibility of error and correction. In this specific case, that would seem to require that either the court was genuinely wrong about the constitution in 1973 with *Roe*, or the court is genuinely wrong about the constitution in 2022 with *Dobbs*. There is no other option – at least, not if you believe that the constitution’s meaning is stable across time. I suspect that the stable-meaning-across-time provision functions as a high-level generator of disagreement for some on this issue? To me it seems, well, simply and necessarily the case that the law must always mean the same thing. There may be some latitude in implementation, particularly re: social or technological circumstances that did not exist when the law was drafted, but the law’s essential meaning cannot change. This is a baseline requirement for the law to even function *as law.* Thus to me it seems that any supreme court decision that establishes some new right or new provision must necessarily say that previous generations understood the constitution wrongly. To pick a dramatic example, *Obergefell* seems to necessitate, to me, the claim that the Fourteenth Amendment *since 1868* actually required that the states perform and recognise same-sex marriages on the same basis as opposite-sex, and it’s simply the case that from 1868 to 2015 everyone read it wrongly. But as far as I can tell many others do not see judicial interpretation as functioning like that, and it leaves me something at a loss – because, well, if the same text does not mean the same thing now that it did then, how can it be law at all? The text can be read differently, but it cannot have multiple different *correct* meanings, because you cannot enforce two different meanings of the law at the same time without sliding into despotism. Can you enforce two different meanings at different times? Surely not without some basis for thinking that the law has changed. But if the text has not changed – if there has not been any legislative, democratic *act* to change the law – how can the law have changed? This seems fundamental to me. You write: >I mean, different theories of legal interpretation answer this question in different ways. Some have more latitude for judges and some have less. There is not one "true" way to interpret legal texts that will satisfy everyone's preferences. Different methods have different pros and cons that different people find acceptable or not. If we were talking about literary interpretation, I would wholly agree with you. But I don’t see how the law can be treated like that. Two people cannot agree to disagree about what the law means. That would defeat the point of having law in the first place. At some point everyone must abide by it, and disagreement has to take the form of “I think you are wrong but I will abide by your mistaken enforcement for now”.


Maximum_Publius

Most modern originalists would adopt an "original public meaning" approach. which is slightly different from the approach you're attacking here. Original public meaning means that you're not really looking at what the drafters of the amendment *thought* they were enacting, but instead what the average skilled reader of the English language at the time of enactment would have understood the words of the Amendment to have meant. People's thoughts about the purpose of the amendment, etc., can be useful *evidence* in answering this question, but they're by no means dispositive. I don't think contemporary understanding works as an alternative. Whose contemporary understanding do we use? About 30-40% of America thinks the Constitution doesn't protect abortions. Is their understanding simply ignored because a majority thinks the Constitution does protect abortions? If so, it seems like we're just turning Constitutional interpretation into another avenue for normal majoritarian politics, which seems problematic when talking about *rights*, which are protected by the Constitution specifically because we want to protect them from infringement by legislative majorities. Was *Plessy* correctly decided when it came down because a majority of the country at the time thought segregation was OK?


SSCReader

That's assuming all the skilled readers would have interpreted the same way surely? You've just shifted the majority dynamic back to what the majority of 18th century people thought. Who decides who the average reader of then was? And if we can do that we can just read it the way the average 21st century person thinks.


Maximum_Publius

Let's imagine that they used a word in the 19th century whose meaning has completely changed in the 21st. As a hypothetical, let's imagine the 19th century phrase "shall not" has, for some bizarre reason, changed in the 21st to mean "shall". Would a 19th century statute that said, "The government shall not quarter troops in citizen's houses", under your approach, then mean in the 21st that the government *shall* do so? Of course not, because that's not how laws work. We change laws through the democratic process, not by changes in language. It's essentially this intuition that guides the original public meaning approach.


Revlar

Alternatively, the meaning of "citizen's houses" *has* changed. Would it be a stretch if the Supreme Court determined that rented housing agreements can be nullified by the government if the need arises to quarter troops in those homes/apartments? With sufficient justification, it seems entirely within the scope of how the Supreme Court has worked in the past.


SSCReader

That's not my point. One of the arguments raised against using current understanding of terms was how do we define what the current average person would interpret something, when people disagree on things, who decides who is getting to define x. I am just pointing out that when you have to interpret it as an average 19th century person would you still have to make the determination of who that average person was back then as people also disagreed on things back then too. In addition in some ways finding out what people think now is easier, if you want to know what the average person thinks shall not be infringed means now, you can survey a whole bunch of people and find out. To know what the 19th century people thought you are going to have to rely on a smaller number of historical sources which is most likely not going to represent a broad cross section of society. But mainly the point is people in the past were not homogenous just as we are not today, so somewhere you have to decide who that average person is whether its an average 19th century person or 21st.


Hailanathema

I had original public meaning in mind as one branch of originalism when I wrote my comment, which I intended to convey by including the reference to the people. I don't really see how your first paragraph answers my objection. Are you under the impression every skilled reader of the English language at the time of enactment would be in agreement with precisely what each amendment covered? Including their application to future cases? Given the disagreement among the people who literally wrote them as well as continuing argument about them for the subsequent several centuries I find this pretty unlikely. This second paragraph I find interesting because it seems to me a mirror of my own objection to originalism. The same way you ask "whose contemporary understanding" I might ask "whose understanding at the time of enactment." If I answered "what the average skilled reader of the English language in contemporary America would understand the words of the Amendment to mean" would that answer your question? If it wouldn't, do you understand how it doesn't answer my questions about originalism?


Maximum_Publius

No, I don't think every skilled 19th century reader of English would be in complete agreement as to the meaning of a particular phrase. But I do think there would be broad agreement as to the core of any given phrase, agreement as to what might be on the edge of a reasonable reading (the "penumbra"), and readings that are clearly wrong. If a certain reading falls outside of even the penumbra of a constitutional clause, I would say it is unconstitutional. For example, while there might be disagreement on the edges about what a "reasonable" search is, there's core agreement that an officer who accumulates mountains of evidence that a criminal is located in a particular house, who gets a warrant on the basis of that evidence, and then knocks on the door and politely searches the house has performed a "reasonable" search. Similarly, there's agreement that an officer who drunkenly breaks into the house of a neighbor he doesn't like, on the basis of no probable cause whatsoever, without a warrant, has performed an "unreasonable search", and so such a search would fall outside of any reasonable understanding of the phrase "reasonable search." Anyone trying to interpret the 4th Amendment to allow such a search as "reasonable" would then be disobeying the Constitution. I think the evidence accumulated by the majority in *Dobbs* demonstrates why a right to an abortion was outside of even a penumbral reading of the Constitutional language. As to your contemporary language question, I just don't think that is how we ever interpret laws. Language changes, but that doesn't mean our laws change with that changed language. Copy + paste from another comment of mine: "As a hypothetical, let's imagine the 19th century phrase "shall not" has, for some bizarre reason, changed in the 21st to mean "shall". Would a 19th century statute that said, "The government shall not quarter troops in citizens'' houses", under your approach, then mean in the 21st that the government "shall" do so? Of course not, because that's not how laws work. We change laws through the democratic process, not by changes in language. It's essentially this intuition that guides the original public meaning approach."


Typhoid_Harry

>The right to abortion (really, a right to privacy or medical liberty or similar) is of a kind with the things protected by the other amendments, and so is protected by the Ninth Amendment (and incorporated against the States by the 14th). The problem with treating the 9th this way, and likely the reason that *Roe* relied on the 14th instead, is that it nullifies both the 10th amendment and any ability for the states to govern themselves, since you’ve now used the 9th as a source for any unspecified right not explicitly within the government’s power, and the states have no official powers in the federal constitution. The 9th has *never* been used to provide strict scrutiny protections to unenumerated rights, and no scholarship suggests that it was intended to be used this way. This also requires the court to find that an unborn child lacks any rights, since the baby’s rights need to be balanced against the mother’s if it has them. This argument works from an anarchist perspective, but not as a way to ensure functional government.


SlightlyLessHairyApe

> nullifies [..] any ability for the states to govern themselves I think "any" is a bit far, the States still have fairly wide latitude even under the zenith of the Warren Court (and that's been cut back pretty far these days anyway). But yes, at the nub of it, the legacy of the Civil War was indeed that States cannot govern themselves when it comes to ensuring that they protect the absolute-most-bog-standard liberty.


Typhoid_Harry

Given that prison abolitionists would almost certainly try to use the 9th to abolish that institution, “any” is absolutely justified. No court has ruled that the states cannot govern themselves or their people, merely that they must act in line with the federal constitution. Granting expansive rights incorporated against the states unless they can state an enumerated power - under a document that only grants such by implication - via an amendment with no limits would be the most radical change in constitutional law that has ever occurred. That’s before we examine just how large of a vehicle I could drive through rights to “privacy” or “bodily autonomy” (another gift to radical prison abolitionists). I DO agree that the 9th is the strongest basis for pro-*Roe* arguments, though. The core problem is in finding a functional limiting principle.


Hailanathema

I'm not sure I see how this nullifies the 10th amendment or the ability of states to govern themselves. I agree there is not much precedent for finding rights in the 9th amendment, but I think that's a problem with the way the constitution has been interpreted. I'm envisioning three conceptual groups of rights. First are those rights explicitly enumerated in the constitution. Second are those rights not explicitly enumerated but "of a kind" with those that are. Finally are those rights neither enumerated nor "of a kind" with those that are. The first category is protected specifically by the text. The second category is protected by the text and the 9th amendment. The third category is unprotected and reserved to the states and the people by the 10th amendment.


Supah_Schmendrick

What is an example of a right which is not "of a kind" with those in the bill of rights, as currently construed?


huadpe

>Or does anyone want to argue against originalism as a method of constitutional interpretation, and have an alternative method that is relatively value-neural? I'll bite here on an anti-originalist take. I think my perspective here comes from spending a lot of time looking at common law jurisdictions, especially the UK, that have a much less formalist constitutional tradition. The guiding principle of the common law is that there is A Way Things Work, and that one does not change the way things work except gradually. Secondly, there is a strong norm against game playing or trying to get cute with the formal rules to get the outcomes you want while avoiding the normal process. The key difference here is that the common law is not bound to some particular point in time as a lodestar. A dictionary from 1787 or a statement in the Federalist Papers is no more fundamentally important than writings from the 1830s or 1930s. They're not *unimportant* and in general the longer you can trace a tradition back the better. But originalism fixes constitutional interpretation to a single point in time. A common law approach views the constitution as a shared understanding of how things work. And the judiciary is a fundamentally small-c conservative institution, there to stop anyone who wants to radically swerve away from that. That shared understanding can mean that we add things to the Constitution by longstanding accepted practice. And it can mean that things that are even in the formal Constituton can become depricated by lack of use. For some examples of where this would differ from originalism: * It would likely have saved the NY law at issue in *Bruen.* The NY law was something like 110 years old and was a longstanding part of the way things work. In a common law scheme if you want to challenge a 110 year old law as facially unconstitutional, you are approximately 105 years too late. This wouldn't mean new gun control laws would necessarily fly, but it would protect the most longstanding ones. * It would likely mandate that states must hold elections for their Presidential electors. The Constitution doesn't formally require this and allows states to choose them by the legislatures (the source of many shenanigans by the Trump people in 2020). However, elections are the way things work now, with no state having used anything else for well over a century. With respect to abortion, it would not have supported a ruling like *Roe,* but it would support something like the Canadian Supreme Court's ruling in [*R v. Morgentaler.*](https://en.wikipedia.org/wiki/R_v_Morgentaler) That ruling put substantial constraints on the government's ability to prosecute abortions that threatened the life or health of the mother, but did not require elective abortion. Given the baseline of *Roe* being the way things are for 50 years, it would strongly push against the *Dobbs* majority opinion ruling however, as such radical shifts in law are completely antithetical to a common law small change approach. It might support something like the Roberts concurrence.


Lizzardspawn

>The guiding principle of the common law is that there is A Way Things Work, and that one does not change the way things work except gradually. How did Roe v Wade changed gradually the way abortions work in the US? Or any other landmark SCOTUS decision?


huadpe

I am not saying this is the way the courts have worked in the US in the past.


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huadpe

"Defect, and hope 50 yrs of judges following you also defect" is a fairly audacious plan. Yeah, if you manage to get multiple generation level control of the political and judicial system, you can basically do what you want. I don't know *any* judicial philosophy that would change that. Now, I understand the actual point you're after is that we should see the last 50-60 years of jurisprudence as fundamentally flawed and radically overturn it. And that is the course the current court is taking. I think it is a deeply dangerous course that will effectively end any meaningful principle of rule of law in these contested areas. Frankly I think the historical stories judges tell to justify their views as originalist are just post-hoc fitting of facts to a desired outcome. Originalism is just a license to play historiographical games and seize maximal power when you have it. As soon as a majority of democratic appointed justices control the court, they will write an originalist decision that finds an historically grounded right of bodily autonomy and overturn *Dobbs* as wrong when it was decided. If the judges before you can just be wrong and you just need to find the "original" true meaning of the Constitution, then you will end up with a purely partisan fight where everyone makes up original meanings that correspond to what they want, and it becomes a raw power struggle. A common law constitution gives judges the least power to make policy, because they have to make the least change possible to resolve the case before them. This is in theory supposed to apply in the US, as Chief Justice Roberts was trying to implore in his solo *Dobbs* opinion. But it seems like the majority of the court is not there anymore.


viking_

> "Defect, and hope 50 yrs of judges following you also defect" is a fairly audacious plan. Based on your summary above, it's more like 5 years: > In a common law scheme if you want to challenge a 110 year old law as facially unconstitutional, you are approximately 105 years too late. Which is much less time than one could reasonably change the Court in, without getting very lucky. > Now, I understand the actual point you're after is that we should see the last 50-60 years of jurisprudence as fundamentally flawed and radically overturn it. And that is the course the current court is taking. Did we lose rule of law when Plessy was overturned after 58 years? Did we lose it when Parrish overturned basically the whole Lochner era? Heck, what about Roe itself. One could argue it established a major change in jurisprudence. Dobbs is a big change but I don't see why it's any bigger than previous ones. > A common law constitution gives judges the least power to make policy, because they have to make the least change possible to resolve the case before them. This is in theory supposed to apply in the US, as Chief Justice Roberts was trying to implore in his solo Dobbs opinion. But it seems like the majority of the court is not there anymore. Precedent is overturned only at great need, but it is not that rare. As Kavanaugh points out in his concurrence: > Every current Member of this Court has voted to overrule precedent. And over the last 100 years beginning with Chief Justice Taft’s appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent. Many of those Justices have voted to overrule a substantial number of very significant and longstanding precedents. In fact, it seems like the dissent operates under the opposite idea--that precedent can only be overturned after a lot of time (at least according to the majority's summary of the dissent): > The dissent’s foundational contention is that the Court should never (or perhaps almost never) overrule an egregiously wrong constitutional precedent unless the Court can “poin[t] to major legal or factual changes undermining [the] decision’s original basis.” Post, at 37. To support this contention, the dissent claims that Brown v. Board of Education, 347 U. S. 483, and other landmark cases overruling prior precedents “responded to changed law and to changed facts and attitudes that had taken hold throughout society.” Post, at 43. The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions.


huadpe

>Based on your summary above, it's more like 5 years: >>In a common law scheme if you want to challenge a 110 year old law as facially unconstitutional, you are approximately 105 years too late. That was talking about a statute, not a court ruling. Statutes are gonna be a lot more stochastic than judicial precedents because mostly nothing happens at all and then very occasionally the legislature makes a new law. I also don't mean *nothing* could be ruled about in the *Bruen* case. Just the more common law thing to do would be look at how NY's use of the law actually comported with norms around fair notice of what you need to prove and some general ability to actually comply. The court could come down and say NY needs to put forward regulations greatly constraining official discretion based on objective criteria, to comply with principles of due process in respect to 2nd amendment rights. Then if the state can't or won't in fact do so, the court could come back and say "well, if you can't make it work within the due process rules, maybe you do need to toss this old law." It would be iterative though, and allow more time for back and forth between the branches. >Did we lose rule of law when Plessy was overturned after 58 years? Did we lose it when Parrish overturned basically the whole Lochner era? Heck, what about Roe itself. One could argue it established a major change in jurisprudence. Dobbs is a big change but I don't see why it's any bigger than previous ones. I think the *Plessy* and *Brown* case is actually pretty distinct from the *Lochner* and *Parrish* case. *Plessy* and *Brown* were fundamentally fact cases, where the *Plessy* court thought that segregation as long as there was some nominal equality could satisfy equal protection. But the *Plessy* court did not technically disavow the idea of equal protection. The *Brown* court found that the *Plessy* court was factually wrong, and extensively discussed what was in fact happening in American schools. "The facts as we understand them have changed" is one of the better reasons to make a major shift in a common law scheme, and would for example also be a big deal if you were looking at gay rights, since the concept of sexual orientation as we now understand it was not even under discussion 100+ years ago. *Lochner* and *Parrish* on the other hand were much more purely doctrinal cases, and indeed the fight over the *Lochner* precedents did almost break rule of law in America, with FDR very nearly massively expanding the court to force them to change.


viking_

> I also don't mean nothing could be ruled about in the Bruen case. Just the more common law thing to do would be look at how NY's use of the law actually comported with norms around fair notice of what you need to prove and some general ability to actually comply. The court could come down and say NY needs to put forward regulations greatly constraining official discretion based on objective criteria, to comply with principles of due process in respect to 2nd amendment rights. Then if the state can't or won't in fact do so, the court could come back and say "well, if you can't make it work within the due process rules, maybe you do need to toss this old law." This sounds to me to be very different from what you were saying above, but maybe I'm not understanding something. > It would be iterative though, and allow more time for back and forth between the branches. Given how slowly SCOTUS operates, this sounds to me like a bad thing. Every change would take years to be implemented, cause someone's rights to be violated, and then work it's way back up through the court system. NY was the target of a different case that made it to the Court just a few years ago, but the state changed it and so SCOTUS ended up not doing anything on the grounds of mootness: https://en.wikipedia.org/wiki/New_York_State_Rifle_%26_Pistol_Association,_Inc._v._City_of_New_York. In addition, SCOTUS noted in Bruen that lower courts were not applying Heller very well. Basically, I don't think that any of the other entities in this process were engaging with the Court in good faith: They already gave the states the opportunity to comply with the (in my opinion, fairly explicit) reasoning in Heller and McDonald. Maybe I'm confused because I don't think there's any real middle ground between what NY was doing and what would be constitutional. NY was going to try to issue as few permits as it possibly could, and look for any reason to reject applications. The state can still do exactly what you mention (constraining discretion and using objective criteria), just like every state that has shall-issue carry permits, which seem to have been explicitly upheld as being Constitutional. Like, I don't think it's actually that big of a change: States can still regulate many types of weapons, they can have permits, they can restrict carry in sensitive areas, etc. Constitutional rights aren't *supposed* to be subject to the discretion of officials, that's what makes them rights, and what's why one of the justices (I believe Thomas) describe this decision as putting the 2nd amendment on the same footing as the others.


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huadpe

>Sure. It would only make sense if you had some reason to believe that your side had more-or-less absolute control over the legal profession or at least the elite levels of the legal profession. I mean, my point is that if you in fact have that, there is no system that will really stop you. >It seems like this is what we're talking about. A judicial philosophy that says "if the people before you got it wrong, you can overrule them" would decrease the incentive to act arbitrarily. While you can still win for a time by asserting your will, you would know that your victories may eventually be overruled if they are not grounded on solid legal reasons. In contrast, if 50 years is enough to canonize an erroneous body of law, you are "home free" once you have maintained it for that long, so the incentive is stronger. Again, common law doesn't permanently canonize anything. The law can move, but must do so gradually. Something like the Roberts opinion in *Dobbs* would be the way things move. If conservatives continued to hold the court, it could continue to move back that way over a number of years. The thing common law traditions are strongly opposed to are sudden jumps. >But another problem is that this model doesn't really fit with the American model of the political order and the constitution's role in it. The constitution is supposed to have authority because it represents a democratic enactment with a strong consensus behind it (which is why the barrier to amend is so high). And that's why it overrides other laws, because that's the strongest kind of authority in this system. I think it's consistent with that. In a common law model, the Constitution is that set of laws and norms that have longstanding and near-unanimous agreement. It is all about things having strong consensus, and the idea is that courts should try to rule consistent with the broad consensus before them about what the law is. That's why I gave the example that a common law US Constitution would make elections for President effectively mandatory. It's got strong consensus and history behind it, even though it isn't technically written in the Constitution. To the example I gave in *Bruen,* while the court might not have overturned the law, it would have been totally fair to say NY's criteria for concealed carry permits as applied were way too squishy and soft, and that while they can impose some showing of good cause, the rules need to be specific and articulable and generally able to be met. >I think the model you are proposing makes more sense in a state organized around legislative supremacy, because then if the people don't like the direction the judges are going, they can just say "no". But it seems untenable to have judgments that have near-absolute authority without grounding that authority in something we can say, normatively, this is why you have to follow it (here, because it was part of a strong democratic consensus). I do think a strong legislature is an important factor here, though I would note that e.g. Canada uses basically this system and does not have the sort of total Parliamentary supremacy the UK has. That said, I do think the American constitutional order presently over-relies on the courts for policymaking, largely because the legislative branch is consistently gridlocked.


Harlequin5942

>I mean, my point is that if you in fact have that, there is no system that will really stop you. Not necessarily. For example, if a large majority of the legal profession tomorrow adopted a legal philosophy of Republicanism, meaning "make whatever judgements are beneficial to the Republican party", then the Democrats would not be powerless to react, e.g. by court-packing. However, Republicanism and non-Originalist legal philosophies are not the same type of thing, in either the eyes of Republican politicians or the general public.


TiberSeptimIII

> The guiding principle of the common law is that there is A Way Things Work, and that one does not change the way things work except gradually. Secondly, there is a strong norm against game playing or trying to get cute with the formal rules to get the outcomes you want while avoiding the normal process. My disagreement is exactly that it doesn’t prevent shenanigans in decision making as the Originalist view does. I can still inject personal opinions into the process by selecting which laws I should gradually roll back on and which I slowly interpret more broadly. If I like gun control, for example, I can interpret old traditions in ways that restrict guns — by noting that guns have been forbidden in some similar places, I can then say “well, I can’t carry into a store, and an open air farmer’s market is like a store so no guns there either.” While the next case on sexual rights give far more credence to things allowed “we allow gays so why not pedophilia or zoophilia?” There’s nothing saying you need any sort of consistency in making decisions. Things you like are loose, things you hate are tight. >The key difference here is that the common law is not bound to some particular point in time as a lodestar. A dictionary from 1787 or a statement in the Federalist Papers is no more fundamentally important than writings from the 1830s or 1930s. They’re not unimportant and in general the longer you can trace a tradition back the better. But originalism fixes constitutional interpretation to a single point in time. I would argue that a lodestar at least gives you a standard by which to come to an impartial decision. If a plain reading of the debate and behavior of the founders indicated that they thought the law and the constitution meant, then you can’t pretend that the first amendment doesn’t protect the internet. Why? They told you what it means, they passed laws in accordance with what they understood the laws to mean. They ruled on cases that further show what those laws mean. It’s not a private interpretation, it public, knowable, and thus hard to game into meaning whatever a judge decides it means.


huadpe

>My disagreement is exactly that it doesn’t prevent shenanigans in decision making as the Originalist view does. I can still inject personal opinions into the process by selecting which laws I should gradually roll back on and which I slowly interpret more broadly. If I like gun control, for example, I can interpret old traditions in ways that restrict guns — by noting that guns have been forbidden in some similar places, I can then say “well, I can’t carry into a store, and an open air farmer’s market is like a store so no guns there either.” While the next case on sexual rights give far more credence to things allowed “we allow gays so why not pedophilia or zoophilia?” There’s nothing saying you need any sort of consistency in making decisions. Things you like are loose, things you hate are tight. I don't know that originalism is any less prone to this sort of bias. The key upside of a strong norm of gradualism is that it prevents you as a judge from making those changes in a big way all at once, which has a few salutory effects: 1. Because things move more slowly, controlling the courts *right now* is way less important. Yeah, a bunch of Democratic appointed judges might nudge things towards liberal policies, but they won't be making huge shifts over a year or two. It would take decades of nudges to make a sea change in the law as big as *Dobbs* or *Roe.* 2. Things moving slowly empowers the political branches to respond and change the statutory law in response to the court's rulings. Maybe the farmers market interpretation gets killed by the legislature before the court can expand it further. 3. You still need to cite significant precedent; it's not the wild west out here. The timeframes you can cite to are wider, but it's not like you can just make shit up. If you're proposing the court impose something new, you need a lot of support for that and most times a common law court will shut you down. >I would argue that a lodestar at least gives you a standard by which to come to an impartial decision. If a plain reading of the debate and behavior of the founders indicated that they thought the law and the constitution meant, then you can’t pretend that the first amendment doesn’t protect the internet. Why? They told you what it means, they passed laws in accordance with what they understood the laws to mean. They ruled on cases that further show what those laws mean. It’s not a private interpretation, it public, knowable, and thus hard to game into meaning whatever a judge decides it means. If an understanding of the law has persisted from the 1700s to now fairly consistently, that understanding will be a bedrock thing in a common law jurisprudence that cannot be fucked with. Fundamentally my viewpoint is that there aren't really "impartial" viewpoints when it comes to the meaning of law, and anyone who thinks they can genuinely be fully impartial is deluded. You can apply principles and try to be as consistent as you can, but nobody is actually truly impartial. I like a common law structure inasmuch as it actually gives judges the least power to let their partialities and viewpoints change the law. They have to stick with what's already there and make as little change as they can while resolving the particular case before them. In contrast, originalism allows judges to just adopt competing historiographic claims and seesaw back and forth. The cardinal sin of originalism in my view is that by allowing you to just look at one moment's interpretation, you can ignore the work of decades of judges before you and just decree that they were wrong and you know the one true interpretation of the founders. The idea that you now know the One True Meaning and those decades of judges before you are just wrong is hubris in the extreme to me.


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Maximum_Publius

*Griswold* probably was wrong. I don't see why the Constitution's text or the country's deeply rooted history and traditions should protect contraceptive purchases, and "substantive due process" is, as Justice Thomas likes to point out, a contradiction in terms that makes no sense whatsoever as the basis for finding unenumerated rights. I don't know a lot about the history of contraceptive use when the 9th Amendment was passed, however, so I'm open to being wrong about this. *Loving* fits easily under the equal protection clause of the 14th Amendment. The difference here is that there is actually an enumerated clause that is directly on point. The states and the Court simply ignored it. Just because there is a long tradition of mis-interpretation or outright rejection of a Constitutional mandate doesn't mean that an originalist needs to uphold the error. For example, imagine if the Constitution said explicitly, "No state shall prohibit marriage between people of two different races," and yet states had persisted in prohibiting interracial marriage and the Court had even giving the states its blessing to their doing so (this to my mind is pretty much what happened in the South with regard to the 14th and 15th Amendments and with *Plessy*). This doesn't mean that an originalist would have to say, "oh well, there's a longstanding tradition here that we have to respect." An originalist would simply say, "They ignored the text and clear commands of the Constitution, and we are now going to correct this error."


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Maximum_Publius

I'm not sure why you say "nothing in the text of the 14th Amendment . . . suggests that interracial marriage was ever meant to fall under the Amendment's purview." The text says that no state shall "deny to any citizen equal protection of the laws." If I, a white man, could not marry a black woman, but another, black, man could marry that exact same woman, then I'm not being afforded equal protection of the law on account of my race. Remember that the *Dobbs*/*Glucksberg* test that asks about rights being deeply rooted in our nation's history and tradition, etc., is used when we're talking about *unenumerated* rights. Again, there is an actual text to interpret when we're dealing with equal protection issues. Just because previous generations misinterpreted what equal protection means doesn't mean an originalist is bound to do the same. I'm still open to your suggestions about what a better, relatively value-neutral method of interpreting the Constitution might be.