"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So if a right is not explicitly enumerated, it still exists and is retained by the people, NOT the States, the PEOPLE! A right to privacy, to control ones own body is fundamental to freedom.
Read the Thomas concurrence, lots more individual freedoms are going to be killed off by these theocratic fascists on the court.
"The largely limitless reach of the dissenters’ standard is
illustrated by the way they apply it here. First, if the “long
sweep of history” imposes any restraint on the recognition
of unenumerated rights, then Roe was surely wrong, since
abortion was never allowed (except to save the life of the
mother) in a majority of States for over 100 years before
that decision was handed down. Second, it is impossible to
defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were
critically different for a reason that we have explained:
None of those cases involved the destruction of what Roe
called “potential life.”"
That's Common Law 101 for you: rights are not "given", they are "discovered".
Pretty much as Newton's laws existed before Newton, the "rights" exist regardless of the laws (so is the philosophy underlying Common Law). The legislature can "discover" these laws, or — failing that — a judge can.
Well, those of us who believe in a textualist definition of the constitution believe the process for adding constitutional rights is a constitutional amendment and we control the court.
I'm not arguing with that, since any argument about "beliefs" is pointless. I'm just saying that "legislating from the Bench" is there by design. If you disagree with the design, it's fine — but this application "works as designed", even if you or me don't like the outcome.
The Continental law is based on another philosophy — you have no rights except the ones that are explicitly given to you by law, and the only way to have more rights passes through the legislature. There are many countries that employ Continental law, but the US is not one of them.
Common Law interpretation sure, you need to use the logic and decisions of the court to inform future decisions, but those decisions must be grounded on actual text and insofar as bad decisions are made they should be corrected. Should we have left all of the bad decisions on slavery and Jim Crow because of stare decisis?
Uhm, no — “precedent” is a judicial decision which may not be grounded on any text whatsoever. It’s a common thing in Common law, and of course it doesn’t exist in Continental law.
Well when your job is to interpret the constitution, it should be grounded on the text. That's why there are textualist who disagree with your interpretation of the role of the court. It is supposed to be the foundation.
From the dissenting opinion: Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights...When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
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This country couldn't pass a constitutional amendment making spam calls and email illegal. And didn't pass an equality amendment making women equal.
There is no prior example of a right being conferred and then taken away like this. That the Court now has a 25% approval rating following this past week, which rivals that of Congress, it is deeply delegitimizing to representative democracy that the minority keeps making the rules, and the majority keeps having to acquiesce, per the rules.
In Lincoln's 1st inaugural address he pointed out that in all constitutional disputes, either the majority or minority must acquiesce, or the government ceases. The majority can't be expected to suck it up all the time, it's just too obvious we don't have anything approximating a representative democracy so what's the incentive to acquiesce?
Basically...legislating from the Bench. This has no place in constitutional jurisprudence.