[rayiner]

If we’re talking about what “should be constitutional,” we’re no longer talking about “the law” but instead policy or philosophy.

Regulating the “public health, welfare, and morals” is the prerogative of state legislatures. So the question is whether there is anything in the constitution that overrides that general power. Resort to “emanations from penumbras” is a concession that there isn’t.

By the way, this isn’t even some U.S.-centric take. The constitutional law in most western democracies leaves regulation of drugs to the discretion of the legislature.

[syntheticcdo]

I'm asking about your personal opinion: in Griswold v. Connecticut should the Supreme Court have upheld states right to ban access to all contraceptives, including condoms?

[CWuestefeld]

Griswold found a person has a right to decide, together with their doctor, what course of medical treatment is best for their particular needs.

Do you support that right at all beyond contraception (and abortion)? For example, do you support my doctor's right to prescribe to me all the pain medication that he and I think is appropriate for my painful, terminal disease? Or to prescribe me LSD or other hallucinogens to treat my PTSD?

It seems to me that Griswold should be invalidating most of the role of the FDA, except in an advisory capacity. But I don't think that's what most people who were aghast at overturning Roe believe.

Would you have been willing to allow, say, Texas or Tennessee, to decide that their resident doctors could tell their patients that there was no need for taking the COVID-19 vaccine, or to wear masks, or social-distance; and there could be no repercussions against patients for exercising those rights?

Support for the arguments Roe was based on seems to be highly dependent on where you want to apply those arguments. That doesn't seem very intellectually honest.

[rayiner]

Your question asks whether I “believe such a restriction should be constitutional.” I’m obviously not in a place to decide what “should” or “should not” be in the constitution—the document is what it is.

If your question is whether I think the Griswold was correctly decided, the answer is obviously not. Regulating access to medications obviously falls within the police power of state governments, and I don’t think the constitution has a special carve out for particular types of medications. In fact I think this was an extraordinarily easy case as a legal matter, and the fact that the Supreme Court got it wrong demonstrates how intellectually sloppy a lot of mid-20th century precedent was.

[dctoedt]

> Regulating the “public health, welfare, and morals” is the prerogative of state legislatures. So the question is whether there is anything in the constitution that overrides that general power. Resort to “emanations from penumbras” is a concession that there isn’t.

Your comments these past months seem to evince an extreme textualist view of the Constitution's limits on government power.

Would it be fair to say that, in your view, a state government can take whatever action it wants, so long as the action isn't literally prohibited by the text of the Constitution? (In other words, for state governments, anything not prohibited is allowed?)

I'm curious: What's your view of the doctrine that under the 14th Amendment, state governments must comply with the Bill of Rights to the same extent as the federal government?

You periodically mock "emanations from penumbras" — is it your view that the phrase has more significance than simply a figure of speech to communicate the underlying concepts? (I have my own issues about Justice Douglas's track record, but that's not one of them.)

[rayiner]

> Your comments these past months seem to evince an extreme textualist view of the Constitution's limits on government power.

I have an extreme textualist view of constitutional limits on legislative power.

> Would it be fair to say that, in your view, a state government can take whatever action it wants, so long as the action isn't literally prohibited by the text of the Constitution?

I wouldn’t say “literally.” I would say it’s a fair reading, as one would apply to a commercial contract.

>,(In other words, for state governments, anything not prohibited is allowed?)

Yes, state governments are not ones of enumerated powers. They inherited the plenary legislative power of the British parliament and can do whatever they want that’s not expressly prohibited.

> I'm curious: What's your view of the doctrine that under the 14th Amendment, state governments must comply with the Bill of Rights to the same extent as the federal government?

I think it’s unsound. My secret left wing view is I think New York can regulate guns (but also Utah can make a state church).

> You periodically mock "emanations from penumbras" — is it your view that the phrase has more significance than simply a figure of speech to communicate the underlying concepts?

It’s a figure of speech that is especially revealing of the “underlying concept,” which is discovering constitutional principles in moral or political philosophy. I basically don’t think that’s legitimate. The constitution embodies a particular set of moral and political philosophies. Sometimes we add more (e.g. the concept of equal protection). But judges don’t get to be philosophers weighing in on moral issues the framers of the constitution and amendments clearly didn’t contemplate.

[dctoedt]

> The constitution embodies a particular set of moral and political philosophies. Sometimes we add more (e.g. the concept of equal protection). But judges don’t get to be philosophers weighing in on moral issues the framers of the constitution and amendments clearly didn’t contemplate.

I'd agree with you — if we had more than one, largely-sclerotic way of amending the Constitution to accommodate new realities and new insights. "The only constant is change" is apparently a misattribution to Heraclitus [0], but it obviously has struck a chord to be in such widespread circulation.

Judicial lawmaking is a kluge, certainly. It brings to mind a passage in Tracy Kidder's 1981 The Soul of a New Machine: A "kluge" is like a wheel made out of bricks: No engineer would be particularly proud to have designed it — but if you need a wheel, and bricks are all you have to work with, then that's what you use.

In any case: Judicial lawmaking has become more-or-less accepted. You're part of the "or less" crowd, clearly. But ISTM that judicial lawmaking is a case of the (mythical) perfect being the enemy of the good-enough.

(A possible improvement: Congress could cabin the judicial-lawmaking process by stating — under the Exceptions and Regulations Clause in Article VI — that a 3/5 majority in each chamber, and perhaps presidential acquiescence, can override any SCOTUS pronouncement about constitutionality. And maybe impose a fast track for legislation to overturn a judicial interpretation of a statute. Both would be roughly akin to the Congressional Review Act for overturning administrative-agency decisions [1].)

[0] https://euppublishingblog.com/2021/07/19/misunderstanding-of...

[1] https://www.congress.gov/crs-product/IF10023

[dctoedt]

> state governments are not ones of enumerated powers. They inherited the plenary legislative power of the British parliament and can do whatever they want that’s not expressly prohibited. *** My secret left wing view is I think New York can regulate guns (but also Utah can make a state church).

That's certainly not an incoherent philosophical position.

EDIT: In this view, it sounds as though each U.S. state would be more like one of the member countries of the EU than, say, cantons in Switzerland or counties in England.