[Hamuko]

The situation in the US seems to suggest that trying to finely analyze the exact sequence of words in a law or the consitution still leaves a whole lot of room for arbitrary decisions. Abortion was a constitutional right until it wasn't and the constitution was not changed between.

[anon373839]

All language carries inherent ambiguity. However, developments in American constitutional law aren’t really about that. The Constitution is very general and it uses terms that lack an objective meaning (for example, “Due Process” - what counts as “process”? What process is “due”?) It can’t really be implemented without bringing in a pile of philosophy and policy making.

At the same time, SCOTUS has been guilty of stretching its terms to include ideas that are clearly out of scope. (For example, the dubious invention of “substantive” due process - which all of the abortion stuff hinges on.)

[jquery]

Of all the examples you could've brought up and you thought a person's right to control their body is a stretch? Try "qualified immunity" if you want an example of justices reasoning with their bare ass showing.

[anon373839]

I was responding to the parent comment.

Also, substantive due process was not invented for reproductive rights. It was invented in Dred Scott v. Sandford, to prevent “free” states from depriving slave owners of their “property”.

[jquery]

So, apparently what you're saying is controversial https://en.wikipedia.org/wiki/Substantive_due_process --

"The phrase substantive due process was not used until the 20th century, but the concept arguably existed in the 19th century. The idea was a way to import natural law norms into the Constitution; prior to the American Civil War, the state courts were the site of the struggle. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford.[11] Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after Dred Scott, the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in Bloomer v. McQuewan, 55 U.S. 539 (1852)"

[anon373839]

While there is a trace of the idea in Bloomer, it is relatively faint. Dred Scott is much more commonly recognized as the origin of substantive due process. For example:

> We should note right at the outset some of the many remarkable facts about the case.

> * Dred Scott was the first Supreme Court case since Marbury v. Madison invalidating a federal law. Since Marbury created judicial review in the context of a denial of jurisdiction, Dred Scott might plausibly be said to be the first real exercise of the power of judicial review.

> * Dred Scott was the first great effort by the Court to take an issue of political morality out of politics. In that sense, it is the great ancestor of many New Deal and Warren Court cases.

> * Dred Scott was the birthplace of the controversial idea of "substantive due process," used in Roe v. Wade, in many important cases endangering the regulatory/welfare state, and in the recent cases involving the "right to die."

> * Dred Scott was one of the first great cases unambiguously using the "intent of the framers" and in that sense it was the great precursor of the method of Justice Scalia and Judge Bork.

From https://dash.harvard.edu/handle/1/12942329

--

I don't think it's controversial at all to say that substantive due process is understood to have its origin in cases like Dred Scott and Lochner, cases where the Supreme Court overrode the results of the democratic process to protect economic interests. Or, for that matter, that the court took significant license in "interpreting" the Fifth Amendment that way.

Also, I think many people are too teleological when they evaluate judicial doctrines and philosophies. "Reproductive rights are good, so let's find a way to justify substantive due process." Jurisprudence is part of a structure and process that is bigger than any specific outcome, and bad jurisprudence shouldn't be excused just because it leads somewhere we might like.

[jquery]

Maybe substantive due process links the two cases in the most nebulous and abstract way, but fundamentally Roe v Wade is about a person's right to control their own body (e.g., nobody can force me to donate a kidney even if I'm a perfect match), whereas Dred Scott was about the exact opposite.

Edit: I also disagree that looking at where judicial philosophies lead is a bad idea. At the end of the day, the judicial system exists for two main purposes: 1) enforce contract law and 2) enforce the moral zeitgeist in the most fair way possible. If an inflexible judicial philosophy is unable to keep up with the morals of the times, we should consider revising the judicial philosophy. I believe this is considered fairly mainstream legal philosophy, and a big reason "originalism" is considered basically a sham by the legal profession.