Forgive the naive question, but this seems an odd statement: "There is nothing in the plain language of the amendment which indicates abortion is not health care"
Is there anything in the plain language of the amendment which indicates that buying an orangutan is not health care? Presumably, the court responds that approximately nobody thinks buying an orangutan is health care. But that isn't true of abortion. It is false that approximately nobody denies abortion is health care. Lots of pro-lifers deny that (and the dictionary definition is not helpful in waiving this problem away).
So, is it actually clear that originalism compels the result here? Is there some standard for contested word definitions? Simple majority rules?
Yes, it sure seems like in a state that's some 60-40 pro-life, the originalist presumption should have been that abortions are *not* (or not simply) healthcare.
Maybe the people of wyoming should have refrained from throwing around leftist rhetorical gang signs about "rights to health care" if they didn't want to be misunderstood.
A "right to ones choice of doctors" would have been much less ambiguous, and squarely focused on attacking obamacare. But it wouldn't have gotten the democrat votes needed to cross the finish line, would it?
And "choice" is itself a gang-sign, so i can't understand the rightist aversion to it. But at least the courts can clarify that much through their typical grammatical-textual methods, and indicate that plain readings may not be read as gang-signs.
"While one might view Vermeule’s essay as a problem for originalism, since it not only attacks originalism but also seeks to persuade conservatives of an alternative to originalism, there may be a silver lining here. If Vermeule were successful in persuading some people on the right to abandon originalism, he might increase the popularity of originalism on the left, which might even leave originalism in a stronger position."
What, exactly, should a judge do if a state enacted a provision of the constitution protecting a right to abortion? For all the talk of “charades,” you seem awfully reluctant to discuss your solution.
Perhaps you recognize how arrogant (and wrong) it would be to assert that your view of fetal personhood is the *only one* a rational being could adopt?
Rational beings can adopt a great number of twisted, evil views. The standard is “reasonable" human beings, not rational human beings.
This case is a clear boondoggle because what obviously happened is that a coalition passed a dirty deal to constitutionally protect “healthcare" without actually defining Healthcare. It's a matter of rhetorical framing whether or not “abortion" is “healthcare.” and rhetoric/semantic gang signs are bad law, plain and simple.
The legislation in question could be interpreted as clarifying that question. But courts reading restrictions into their own jurisdiction, or positively mandating specific textual interpretations, is a similarly constitutionally fraught question. Especially when this was not the specific intent of the legislature (and american burgessess/legislatures are notoriously weak-willed.)
But what should a judge do if the state positively did protect abortion, assuming that abortion violated either “natural law" or more specific “christian morality?” That's something this ‘stack doesn't really cover, but one suggestion might be to simply inform the parties to the dispute of the true nature of the text, it's correct and evil meaning, while not taking specific actions to give force to an evil act. Which is to say, mediate/adjudicate the dispute, rather than forcibly resolving it. The code of Justian defines justice as the mere correct execution of justice, so simply execute the law correctly.
My point isn’t about this Amendment. The author of this piece seems to think that courts should be able to use the natural law (really just Catholic morality) to override a constitutional amendment. I think that’s wrong.
I actually think state-constitutions are stupid and deserve no respect. Certainly nowhere near as much respect as the US constitution. The US constitution is a carefully negotisted compact between the states, the people, and the federal government, in its three branches. But the states and their respective peoples have no defined relationship at all, and a state-constitution is just a piece of paper that no one even pretends to take seriously. The US constitution has severe restrictions on amending itself, state cinstitutions just need to pass a plebicite, if even that.
This entire case was caused because idiots proposed some kind of plebicite regarding a "right to healthcare" that nobody can actually define. That is not a law worthy of respect, and the american system of government is not particularly respectful of plebicites to begin with.
When a plebicite resolves to "declare the state as an illegitimate and unrepublican representitive of the people should this plebicite pass, be enacted, and not be carried out, and seek immediate redress by all means including direct recourse to the people" then it *might* almost be a respectable piece of legislation. Big maybe. Then there might actually be some counterparty whose interests have to be taken into account. And the constitution's only requirement of the state is that they have a republican form of government, so what happens when a plebicite says it doesn't?
But as to the constitutive structures of state governance as they stand, they are almost entirely fictive. They can be made and unmade at will, and the relations between judiciary, legislature, and executive are mostly formal rather than substantive. These are general governments, not the limited, delegated, and enumerated federal government which has to so delicately wrangle between so many different counterparties. No, any internal wrangling within the state is just pathetic self-dealing, an excuse for inaction with no basis in either tradition or reality.
Tell me what the state of rhode island's constitution is. Go on. It's an unwritten constitution. Read the history of dorr's rebellion.
The people can amend whatever they want. If their amendments are incoherent, their amendments are meaningless. Incoherent laws should not be just ignored by judges. They should be ignored by every gentleman of good taste alive.
And if wyoming wants to treat the word "healthcare" like a voodoo talisman that either does or doesn't include 'abortion' depending on your metaphysics, then that amendment should be treated with the same respect as voodoo talismans generally.
If the separation of church and state doesn't mean this, it means nothing.
I think they they should interpret it as meaningless, incoherent, unrelated to legal reality, and a product of political petulance and desperation. It was intended to preserve choice of doctors, something that it was manifestly incapable of doing.
Along with several other commenters, I think this would've been an awful lot stronger had you done more than vaguely allude to what you think should actually happen here.
A stay on interpreting "healthcare" to include "abortion," pending further legislation, conditionally upholding the specific bill in question. Not in the least because the legislative intent is clearly that abortion nit be tested as healthcare. Further, the question should be practively referred to a legislative committee in judicial matters, and the judge would do well to volunteer to testify to that committee. Perhaps even a plebicite (ew) on if the amendment should be read as covering abortion would be appropriate, since the will of the people is in question here.. The american voter is stupid, nihilistic, and cynical, but this isn't exactly a difficult question. I think he can manage it.
Juxtaposing "... we must keep in mind Professor Vermeule’s observation that originalism is ultimately illusory—judges deploy substantive principles of political morality to decide between these kinds of choices in level of generality, necessarily, and they view those principles as being internal to the law, not external, however much they may decry the use of substantive principles of political morality ..." and your closing comments "Will Catholic originalist judges need to recuse, as the “natural law originalists” tell us, in these kinds of cases?" is what makes your commentary appear very infirmly based on anything but your deeply felt religious convictions as surpassing any textual or other principled assertion.
Say, for example, that we start with the original originalism. Well, "Catholic originalist" thinking was not much present among the original Constitutional framers. Only 2 of the 39 signers of the Constitution (which included the original Bill of Rights) were Catholic. The 39 were a majority of those who attended the Constitutional Convention (55, of which 3 were Catholic) with everyone else Protestant or even Deist.
If we are to take Catholic originalist thinking as the "proxy" for "right thinking" so as to be rid of what you call a "charade", should we also take that to mean to include Papal infallibility, which becomes Catholic doctrine only in 1870? Because granting that most assuredly means that a Catholic who is applying his religious tenets scrupulously is not likely to care about non-Catholic textualism, originalism, or anything but being "right thinking" denominationally.
These comments and questions are not hostile to Catholics as members of the American polity. But they are hostile to your attitude because they are responsive and reactive to your closing comment, namely, "I do wonder how much longer we have to put up with the charade," which does mean, to my mind, that you have no real patience for the idea of Founders’ principles. I mean, we all know, do we not, that the cause for a new form of government favorable to the freedom of humans had to be more and do more than just humor human fallibility only when it concerned minor topics. Or do you not agree? Or is my question just one more charade, too?
“The idea of the founders’ principles” is not the same thing as “the founders’ principles" not in the least because the founders were pragmatists rather than idealists. So yes, “the idea of the founders principles” is a charade, because it betrays their actual principles and the traditions they passed down to us.
Thomism is an interpretative tradition that can be found within the body of English Common Law (see the holy trinity of Thomas Áquinas, Thomas Á Kempis, and Thomas Á Beckett, not to mention Thomas More). We can assume that some variety of similar thought on natural law underpins the metaphysics of the founding fathers, to whatever extent that has any bearing on law. The, as you say, “right-thinkingness" of the founding fathers, which we usually just call “Common Sense" (naned after the pamphlet).
The Victorian Maxim that “Parliament can make anythibg true, other than making a man into a woman” suggests a christian metaphysical underpinning on ontology, in the nature of what is and isn't real, or can be said to be real. Similarly, one would image that the constitution can "make anything healthcare, except for abortion/euthanasia/murder” from a similar understanding of the “right thinking" ontology held by the founding fathers.
Which is not even to say that parliaments and courts cannot sanction abortion/euthanasia/murder (see: execution of King Charles I), merely that it cannot unmake such an act as murder (see: treason convictions relating to the execution of King Charles I), nor can it make such an act healthcare.
Read “parliaments” as “talkings.” Thus, parliamentary sanction=”the will of the people”=constitutions. The constitution is a great number of things, and one of them is a folk oral tradition.
Forgive the naive question, but this seems an odd statement: "There is nothing in the plain language of the amendment which indicates abortion is not health care"
Is there anything in the plain language of the amendment which indicates that buying an orangutan is not health care? Presumably, the court responds that approximately nobody thinks buying an orangutan is health care. But that isn't true of abortion. It is false that approximately nobody denies abortion is health care. Lots of pro-lifers deny that (and the dictionary definition is not helpful in waiving this problem away).
So, is it actually clear that originalism compels the result here? Is there some standard for contested word definitions? Simple majority rules?
Yes, it sure seems like in a state that's some 60-40 pro-life, the originalist presumption should have been that abortions are *not* (or not simply) healthcare.
Maybe the people of wyoming should have refrained from throwing around leftist rhetorical gang signs about "rights to health care" if they didn't want to be misunderstood.
A "right to ones choice of doctors" would have been much less ambiguous, and squarely focused on attacking obamacare. But it wouldn't have gotten the democrat votes needed to cross the finish line, would it?
And "choice" is itself a gang-sign, so i can't understand the rightist aversion to it. But at least the courts can clarify that much through their typical grammatical-textual methods, and indicate that plain readings may not be read as gang-signs.
This post is yet another reminder that are worse things than Originalism...
https://lawliberty.org/if-adrian-vermeule-didnt-exist-would-originalists-have-to-invent-him/
"While one might view Vermeule’s essay as a problem for originalism, since it not only attacks originalism but also seeks to persuade conservatives of an alternative to originalism, there may be a silver lining here. If Vermeule were successful in persuading some people on the right to abandon originalism, he might increase the popularity of originalism on the left, which might even leave originalism in a stronger position."
I can wait to read. I love abortions!
What, exactly, should a judge do if a state enacted a provision of the constitution protecting a right to abortion? For all the talk of “charades,” you seem awfully reluctant to discuss your solution.
Perhaps you recognize how arrogant (and wrong) it would be to assert that your view of fetal personhood is the *only one* a rational being could adopt?
Rational beings can adopt a great number of twisted, evil views. The standard is “reasonable" human beings, not rational human beings.
This case is a clear boondoggle because what obviously happened is that a coalition passed a dirty deal to constitutionally protect “healthcare" without actually defining Healthcare. It's a matter of rhetorical framing whether or not “abortion" is “healthcare.” and rhetoric/semantic gang signs are bad law, plain and simple.
The legislation in question could be interpreted as clarifying that question. But courts reading restrictions into their own jurisdiction, or positively mandating specific textual interpretations, is a similarly constitutionally fraught question. Especially when this was not the specific intent of the legislature (and american burgessess/legislatures are notoriously weak-willed.)
But what should a judge do if the state positively did protect abortion, assuming that abortion violated either “natural law" or more specific “christian morality?” That's something this ‘stack doesn't really cover, but one suggestion might be to simply inform the parties to the dispute of the true nature of the text, it's correct and evil meaning, while not taking specific actions to give force to an evil act. Which is to say, mediate/adjudicate the dispute, rather than forcibly resolving it. The code of Justian defines justice as the mere correct execution of justice, so simply execute the law correctly.
Let the people pass whatever amendments they want? If they don’t violate the US constitution, I don’t see why not.
It's not clear what precisely the drafters/voters “wanted” when they passed this amendment.
You can probably even assume that there was no intent to this legislation at all, nor any plain reading of it.
And no commissioned judge can sanction a naked criminal act. Only commissioned military officers can do that.
My point isn’t about this Amendment. The author of this piece seems to think that courts should be able to use the natural law (really just Catholic morality) to override a constitutional amendment. I think that’s wrong.
I actually think state-constitutions are stupid and deserve no respect. Certainly nowhere near as much respect as the US constitution. The US constitution is a carefully negotisted compact between the states, the people, and the federal government, in its three branches. But the states and their respective peoples have no defined relationship at all, and a state-constitution is just a piece of paper that no one even pretends to take seriously. The US constitution has severe restrictions on amending itself, state cinstitutions just need to pass a plebicite, if even that.
This entire case was caused because idiots proposed some kind of plebicite regarding a "right to healthcare" that nobody can actually define. That is not a law worthy of respect, and the american system of government is not particularly respectful of plebicites to begin with.
When a plebicite resolves to "declare the state as an illegitimate and unrepublican representitive of the people should this plebicite pass, be enacted, and not be carried out, and seek immediate redress by all means including direct recourse to the people" then it *might* almost be a respectable piece of legislation. Big maybe. Then there might actually be some counterparty whose interests have to be taken into account. And the constitution's only requirement of the state is that they have a republican form of government, so what happens when a plebicite says it doesn't?
But as to the constitutive structures of state governance as they stand, they are almost entirely fictive. They can be made and unmade at will, and the relations between judiciary, legislature, and executive are mostly formal rather than substantive. These are general governments, not the limited, delegated, and enumerated federal government which has to so delicately wrangle between so many different counterparties. No, any internal wrangling within the state is just pathetic self-dealing, an excuse for inaction with no basis in either tradition or reality.
You clearly know nothing about any state’s constitutional law, so I will be ignoring your ignorant bloviating.
Tell me what the state of rhode island's constitution is. Go on. It's an unwritten constitution. Read the history of dorr's rebellion.
The people can amend whatever they want. If their amendments are incoherent, their amendments are meaningless. Incoherent laws should not be just ignored by judges. They should be ignored by every gentleman of good taste alive.
And if wyoming wants to treat the word "healthcare" like a voodoo talisman that either does or doesn't include 'abortion' depending on your metaphysics, then that amendment should be treated with the same respect as voodoo talismans generally.
If the separation of church and state doesn't mean this, it means nothing.
How do you think that the Wyoming Supreme Court should interpret this provision of their constitution in cases not involving abortion?
I think they they should interpret it as meaningless, incoherent, unrelated to legal reality, and a product of political petulance and desperation. It was intended to preserve choice of doctors, something that it was manifestly incapable of doing.
Along with several other commenters, I think this would've been an awful lot stronger had you done more than vaguely allude to what you think should actually happen here.
In this specific case:
A stay on interpreting "healthcare" to include "abortion," pending further legislation, conditionally upholding the specific bill in question. Not in the least because the legislative intent is clearly that abortion nit be tested as healthcare. Further, the question should be practively referred to a legislative committee in judicial matters, and the judge would do well to volunteer to testify to that committee. Perhaps even a plebicite (ew) on if the amendment should be read as covering abortion would be appropriate, since the will of the people is in question here.. The american voter is stupid, nihilistic, and cynical, but this isn't exactly a difficult question. I think he can manage it.
Juxtaposing "... we must keep in mind Professor Vermeule’s observation that originalism is ultimately illusory—judges deploy substantive principles of political morality to decide between these kinds of choices in level of generality, necessarily, and they view those principles as being internal to the law, not external, however much they may decry the use of substantive principles of political morality ..." and your closing comments "Will Catholic originalist judges need to recuse, as the “natural law originalists” tell us, in these kinds of cases?" is what makes your commentary appear very infirmly based on anything but your deeply felt religious convictions as surpassing any textual or other principled assertion.
Say, for example, that we start with the original originalism. Well, "Catholic originalist" thinking was not much present among the original Constitutional framers. Only 2 of the 39 signers of the Constitution (which included the original Bill of Rights) were Catholic. The 39 were a majority of those who attended the Constitutional Convention (55, of which 3 were Catholic) with everyone else Protestant or even Deist.
If we are to take Catholic originalist thinking as the "proxy" for "right thinking" so as to be rid of what you call a "charade", should we also take that to mean to include Papal infallibility, which becomes Catholic doctrine only in 1870? Because granting that most assuredly means that a Catholic who is applying his religious tenets scrupulously is not likely to care about non-Catholic textualism, originalism, or anything but being "right thinking" denominationally.
These comments and questions are not hostile to Catholics as members of the American polity. But they are hostile to your attitude because they are responsive and reactive to your closing comment, namely, "I do wonder how much longer we have to put up with the charade," which does mean, to my mind, that you have no real patience for the idea of Founders’ principles. I mean, we all know, do we not, that the cause for a new form of government favorable to the freedom of humans had to be more and do more than just humor human fallibility only when it concerned minor topics. Or do you not agree? Or is my question just one more charade, too?
“The idea of the founders’ principles” is not the same thing as “the founders’ principles" not in the least because the founders were pragmatists rather than idealists. So yes, “the idea of the founders principles” is a charade, because it betrays their actual principles and the traditions they passed down to us.
Thomism is an interpretative tradition that can be found within the body of English Common Law (see the holy trinity of Thomas Áquinas, Thomas Á Kempis, and Thomas Á Beckett, not to mention Thomas More). We can assume that some variety of similar thought on natural law underpins the metaphysics of the founding fathers, to whatever extent that has any bearing on law. The, as you say, “right-thinkingness" of the founding fathers, which we usually just call “Common Sense" (naned after the pamphlet).
The Victorian Maxim that “Parliament can make anythibg true, other than making a man into a woman” suggests a christian metaphysical underpinning on ontology, in the nature of what is and isn't real, or can be said to be real. Similarly, one would image that the constitution can "make anything healthcare, except for abortion/euthanasia/murder” from a similar understanding of the “right thinking" ontology held by the founding fathers.
Which is not even to say that parliaments and courts cannot sanction abortion/euthanasia/murder (see: execution of King Charles I), merely that it cannot unmake such an act as murder (see: treason convictions relating to the execution of King Charles I), nor can it make such an act healthcare.
Read “parliaments” as “talkings.” Thus, parliamentary sanction=”the will of the people”=constitutions. The constitution is a great number of things, and one of them is a folk oral tradition.