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The Endgame of Originalism: Stakes of the Texas Abortion Ban.

Kephalos

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I for one am surprised why this brief has not received the attention it deserves. This brief, submitted to the US Supreme Court by Jonathan Mitchell and the relevant section deserves to be quoted in full (footnotes in the original, Spoiler for brevity):



Quite honestly, I did not know the stakes where this high: not only is abortion at stake, but also same-sex marriage, statutes against homosexuality, bans on interracial marriage and contraception bans are also, potentially, in danger.
 

ceecee

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I for one am surprised why this brief has not received the attention it deserves. This brief, submitted to the US Supreme Court by Jonathan Mitchell and the relevant section deserves to be quoted in full (footnotes in the original, Spoiler for brevity):



Quite honestly, I did not know the stakes where this high: not only is abortion at stake, but also same-sex marriage, statutes against homosexuality, bans on interracial marriage and contraception bans are also, potentially, in danger.
Been saying they'll come for all the freedoms for some time. This is what the authoritarian right does EVERYWHERE and always has. But yanno, both sides...
 

ceecee

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This starts today, if anyone is paying attention.
 

Virtual ghost

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I always found it stupid that this has to solved in courts in some countries. Since this is evidently cultural and not legal issue.
 

Kephalos

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I mean the courts should uphold the law, not determine what is the law.
It is a legal issue as far as the law is used to make sure that the human rights of people are respected by governments. That is a function of courts of law. Which is not to say that legislation has no role to play here:
The legal protection of rights combines both legislation and judicial protection:
All the Grundrechte have a binding effect on each of the constitutional institutions, regardless of whether it is the executive, legislature or judiciary, federally or in one of the states (Länder). It is also irrelevant whether the state was directly or indirectly involved in the violation, whether it acted through public or private law or through legal entities under private law; public bodies are always bound by the Grundrechte (Art. 1(3) GG).
 
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Virtual ghost

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It is a legal issue as far as the law is used to make sure that the human rights of people are respected by governments. That is a function of courts of law. Which is not to say that legislation has no role to play here:


Call it a cultural difference but I don't agree with this. For me this has to be settled by a parliament that is elected directly by the people. Therefore if people vote for politicians who support the abortion (or don't support) that is how it should be. Courts are simply there to sort out particular cases if they don't fit clearly into laws, since both sides can't agree how exactly the case fits into a law. What is unlikely to be the case with individual abortions.










 

ceecee

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This is just one thing - they will look to reverse Brown vs Board of Education, Obergefell v. Hodges, Bowers v. Hardwick. They've already gutted the Voting Rights Act and I'm certain ending anything meaningful left in the Civil Rights Act is on the conservatives agenda.

Either people approach Republican's/GOP/conservatives (so everyone understands who I'm talking about) like the menace they are or enjoy living in a fully authoritarian ultra-national right wing country while crying about both sides and what the fuck happened as I haven't been taking any of this seriously!
 

Virtual ghost

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This is just one thing - they will look to reverse Brown vs Board of Education, Obergefell v. Hodges, Bowers v. Hardwick. They've already gutted the Voting Rights Act and I'm certain ending anything meaningful left in the Civil Rights Act is on the conservatives agenda.

Either people approach Republican's/GOP/conservatives (so everyone understands who I'm talking about) like the menace they are or enjoy living in a fully authoritarian ultra-national right wing country while crying about both sides and what the fuck happened as I haven't been taking any of this seriously!


In history books it is well known that when a country sinks deep enough it either collapses or turns into some kind of a dictatorship. Therefore it is evident where all of this is leading. The only real question left is the country below the line after which you can't really salvage the situation without hell braking lose. However this is the question on which you are more competent to answer.
 

ceecee

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In history books it is well known that when a country sinks deep enough it either collapses or turns into some kind of a dictatorship. Therefore it is evident where all of this is leading. The only real question left is the country below the line after which you can't really salvage the situation without hell braking lose. However this is the question on which you are more competent to answer.
I would say some type of dictatorship/totalitarian, then fighting over the scraps in earnest. Then the end.

This is what's coming right now. It's what people like Disco have been advocating for at length.

 

Virtual ghost

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I would say some type of dictatorship/totalitarian, then fighting over the scraps in earnest. Then the end.

This is what's coming right now. It's what people like Disco have been advocating for at length.



That depends on how much you want to go into details. I mean if you go deep into it the odds are that some kind of a permanent conservative order probably wouldn't be possible. Since the ideology in it's current form is basically self-destructive in the terms of healthcare, education, crime, mental health ... etc. Therefore in combination with growing debts and external pressure it is quite likely that this doesn't really have a future as a system. While "the end" is also kinda subjective term because most countries on the planet had huge transformations through revolutions or complete remake of their constitution. However Americans for some reason think that if constitution changes that the country will suddenly be something else. It can happen due to external reasons but in general this is not the case and the country is simply "rebranded" if it happens. It isn't that the locals will suddenly become someone else or that the landscape or infrastructure will change. This depends of the specifics but "the end" is quite subjective term.


So yeah, for me this isn't simple at all in the terms of a endgame. Since there is no end game and the time ahead is infinite.
 

ceecee

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That depends on how much you want to go into details. I mean if you go deep into it the odds are that some kind of a permanent conservative order probably wouldn't be possible. Since the ideology in it's current form is basically self-destructive in the terms of healthcare, education, crime, mental health ... etc. Therefore in combination with growing debts and external pressure it is quite likely that this doesn't really have a future as a system. While "the end" is also kinda subjective term because most countries on the planet had huge transformations through revolutions or complete remake of their constitution. However Americans for some reason think that if constitution changes that the country will suddenly be something else. It can happen due to external reasons but in general this is not the case and the country is simply "rebranded" if it happens. It isn't that the locals will suddenly become someone else or that the landscape or infrastructure will change. This depends of the specifics but "the end" is quite subjective term.


So yeah, for me this isn't simple at all in the terms of a endgame. Since there is no end game and the time ahead is infinite.
I can rephrase. When I say "the end" I mean the end of whatever we currently have. Never been a real fan of the current constitution but I'm not at all for a more conservatives form of what we have - we're already there, it doesn't work.
 

citizen cane

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I'm not sure why this surprises anyone by this point. 6 or 7 years ago maybe, but now?
 

Virtual ghost

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Call it a cultural difference but I don't agree with this. For me this has to be settled by a parliament that is elected directly by the people. Therefore if people vote for politicians who support the abortion (or don't support) that is how it should be. Courts are simply there to sort out particular cases if they don't fit clearly into laws, since both sides can't agree how exactly the case fits into a law. What is unlikely to be the case with individual abortions.


I mean I fail to see courts to be something fundamentally separate from the Government, especially if it is some very high court. For me that is just another government agency full of partisan people. Therefore I think this should be settled by direct representatives. However the public must also be wise enough to recognize when the issue is settled and just move to some other problems. Because culture wars are expensive in their own way.
 

Kephalos

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However Americans for some reason think that if constitution changes that the country will suddenly be something else.
Well, that is precisely the point. To change things. To make things better than they are now and better than they have been until now.
 

Burning Paradigm

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This is what originalism always does; at best, it thinly cloaks a desire to return to a legal status quo where historically powerful groups (you can take a gander at which groups those are) are not bound by legal constraints (even if those constraints are oft weakly enforced). Their core argument, that constitutional documents have to be interpreted as the Founders did, falls flat when you consider the Founding Fathers *themselves* debated the meaning and application of their own words. The "origins" they're protecting are not the Constitution (which has changed necessarily in both text and interpretation); the origins they're protecting are the people who originally had vested and almost unrivaled power at the inception of the country.

As a footnote, with respect to Texas in particular, you see a large number of voters dissatisfied with such a stringent abortion ban: https://www.texastribune.org/2021/11/08/texas-voters-poll-abortion-electricity-property-taxes/. I've grown up in this state (and my parents lived here for 10 additional years before I was born); this is a huge shift in popular opinion from where it was even 5 years ago. Our state government, though, hasn't changed, and their intent is clear. They wish to impose minority rule through an interpretation of the constitution that keeps their increasingly unpopular agenda alive.
 
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Kephalos

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I would claim that, really, the United States has had about four different constitutional orders or constitutional settlements at the national level since it became independent: 1) the 1776-1787 constitution under an actually different text, the Articles of Confederation and Perpetual Union; 2) 1789-1865, the antebellum constitution; 3) 1865-1937, the postbellum constitution; 4) 1937-today (?), the New Deal/Civil Rights constitution.

The past is a foreign country; they do things differently there. -- L.P. Hartley. To which I would add, the imagined past is a third country, different from both the present time and the historcial past.
 
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Burning Paradigm

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I would claim that, really, the United States has had about four different constitutional orders or constitutional settlements at the national level since it became independent: 1) the 1776-1787 constitution under an actually different text, the Articles of Confederation and Perpetual Union; 2) 1789-1865, the antebellum constitution; 3) 1865-1937, the postbellum constitution; 4) 1937-today (?), the New Deal/Civil Rights constitution.

The past is a foreign country; they do things differently there. -- L.P. Hartley. To which I would add, the imagined past is a third country, different from both the present time and the historcial past.

I'd add the last point, especially, to my previous post. I'd even call it a manufactured past in lieu of imagined. The imagined past for originalists is one where the Founding Fathers had a stringent meaning and interpretation of the Constitution they all agreed upon. It's not so much a delusion (though I'm sure some genuinely believe this) so much as a deliberate characterization of history to push a certain agenda.

Regardless, calling the Constitution of 1789 onwards far from perfect would be a gross understatement. To be bound by that interpretation is limiting and debilitating at best.
 
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