Your high school biology teacher will tell you that after conception, there is a new member of our species that we call homo sapiens, with a mother and a father. It can even happen in a test-tube, and some day soon it will never need a human womb. But according to Roe, the state can only protect it from destruction when it could hypothetically surive in an advanced incubator. Roe is anathema to common-sense for people who really think about the value of human life, e.g. athiest Nat Hentoff.

btw Harlan dissented in ‘one man, one vote’ cases because he argued neither Art. I or the 14A was intended to reach that far. @2 of the 14A was esp. telling.

But, Harlan referenced the open-ended nature of fundamental rights protected by the 14A too, harkening back to the Slaughterhouse Cases. I’m not sure how one can selectively support his jurisprudence. It was really of a piece.

It is cheating really to selectively quote boilerplate respecting how the Constitution doesn’t cover all wrongs. Anyone can cite that respecting any particular issue. Thus, Stevens noted in Bush v. Gore that voting is imperfect as juries.

BTW, you again .. just like the Court … focused on marriage. NYC, for instance, recognize “domestic partnerships” for limited reasons. It is not “marriage.” But, the law here bans Omaha from passing such a law, for instance, to secure health proxies for partners, or the like. I’m not sure how this furthers the interests of “responsible parenthood” or whatnot.

I’d add the ruling conveniently avoided Turner, which discussed how marriage was a lot more than raising children, and is very important even for those who cannot conceive. This amendment goes further. It even bans anything “similar” to marriage. But, such couples can live together and have sex etc. per Lawrence. A ruling that honors the intimate associations involved.

I’m not sure the “rational” (if intimate association warrants only that test) basis of this broad based ban.

I tell ya what … it isn’t a felt need that original understanding compels it.

What part of Roe was such a problem? The unborn not being “persons?” No. The importance of privacy over familial matters? Meyers and Pierce secured that in the 1920s. Closer, you have Griswold. So, apparently there is something about fertilization that is the difference. That is why it was so horrible. But, if one actually reads the opinion, we see that this line is rather hazy.

Originalism doesn’t seem to be your bottome line either, so the fact abortion was outlawed in 1868 wasn’t compelling.

So we go to state purpose. Health? No, that would be irrational … trumping women’s health over unconstitutional persons … up to a point at least. So, Roe’s fault ala Ginsburg might be that it is was overbroad. This isn’t TOO damning.

Morality? The opinion noted the state didn’t rely on it. Listening to the oral argument, they did compare fetuses with the mentally handicapped etc. … as if they were “persons.” But, again, that wouldn’t work.

Maybe, abortion is different from Griswold. That concerned “use” at home. But, some justices at least voiced broader themes of familial privacy, and this is how a majority of the lower courts interpreted it. As did the Supremes by the time of Roe.

Maybe, it’s the recognition that this particular violation of privacy to secure non-constitutional persons particularly burdened woman and their autonomy. If so, this would open up a can of worms.

At this time, many poorer women were being pressured to be sterilized. This as well as the general fact that the state was telling the woman what to do with the fertility reeked of slavery days. Is stopping this such a travesty?

Was the era’s tendency to micromanage only so horrible in this particular case?

Only one year later, Harlan would commit the same offense he excoriated his colleagues for. Apparently, he could not heed his own advice.

I guess it just goes to show that no Judge is perfect.

Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional “principle,” and that this Court should “take the lead” in promoting reform when other branches of government fail to act. The Constitution is [p625] not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.

Stewart was no originalist and while from a moral view his opinion is commendable, it’s mere ipse dixit on his part, especially since the framers explicitly contradicted him.

As for Thomas, he’s usually pretty good, but the facts are against him. Even Harlan in Plessy did not go so far as to claim it meant equal treatment. Much like the aff action cases, originalists don’t really go too far into the history of the era.

Of course, it CAN be squared with originalism. So can just about any decision if you hunt for enough quotes, take enough things out of context, etc…

As Thomas said in Hamdan, even tough he disagreed with Stevens, Stevens’ opinion was “plausible”.

The originalist defense of Loving/Brown etc… is certainly plausible, but it is not probable, and certainly not conclusive. Reaching the opposite result is far more plausible and probable.

That being said, the Loving decision is on firmer ground and precedent than Roe. That is of a level of magnitude worse. i do agree with you there.

“I have previously expressed the belief that ‘it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.’ Because I adhere to that belief, I concur in the judgment of the Court.”

Justice Thomas wrote in Missouri v Jenkins,

“The point of the Equal Protection Clause is not to enforce strict race mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color.”

I am entirely sympathetic to the notion that some “rights” we supposedly have (e.g. “right” to have contraception) are found nowhere in the text of the Constitution. My basic point is that those in favor of gay marriage (in arena very different from this one) often point to Loving and say something like “Aha! You must disgree with Loving too. You think the state can prohibit inter-racial marriages, you racist homophobe”.

You have clearly shown out that through time, people *in practice* have thought that anti-miscegenation where square with “Equal Protection”. However, I think Justice Thomas demonstrates how anti-miscegenation laws *can* be opposed by the original intent of the 14th. The only disgreement is whether symmetrical application of laws that refer to race can pass Equal Protection muster, a fine point indeed. I don’t think that every framer of the 14th would be “shocked and stunned, if not horrified” at this relatively minor point of application. But even if they did feel that way, it is nothing compared to how they would feel about the right to abortion-on-demand being found in the 14th amendment. Those are the “Original Intent” battles worth fighting, not Brown I and Loving.

Harrison’s “originalist” defense of Loving rests on a facile dismissal
of the problem of “symmetrical” discrimination. Harrison
argues:
Under a ban on interracial marriage, the rights of individuals
are not the same under all descriptions, because blacks can
marry blacks and whites cannot, even though all are prevented
from marrying members of the other race. But if the rights are
different under any description, they are not the same.457

But the only authority from the Thirty-Ninth Congress
Harrison can cite is Senator Reverdy Johnson (D. Md.) a bitter opponent
of the Civil Rights Act and the Fourteenth Amendment.458
In response to Johnson, the Amendment’s Republican proponents
replied that it did not prohibit “symmetrical” discrimination.

Senator
Fessenden, Republican of Maine, argued that miscegenation
laws were equal because they punished both races equally for mixed
marriages.459 Likewise, in the House, Illinois Republican Samuel
W. Moulton, denied “that it is a civil right for a white man to marry
a black woman or for a black man to marry a white woman.”460

Harrison, who evidently feels Johnson had the better of the argument,
concludes: “On this issue, the Republicans either deceived
themselves or decided that the only thing for it was a round untruth.”
461 But whether the Republicans deceived themselves or
merely deceived the ratifying public with a “round untruth,” the fact
remains that the public understanding of the Amendment expressed
by its originators (in contrast to its opponents, such as Reverdy
Johnson) was that it forbade asymmetrical, but not symmetrical
discrimination.

Again, one can disagree with that, but facts are facts. Under the original understanding, Loving was wrongly decided. Would I overrule it? No. It’s 40 years old. No state has challenged it. It’s not the subject of bitter dispute and the public doesn’t seem to have a problem with it(the total opposite of Roe by the way).

In that case, as Madison said, the overwhelming and longstanding public and legislative acceptance of and reliance on a decision counsel’s against overruling it becuase of one’s personal views on the original merits of the matter.

However, if I were on the Court in 1967, I would have dissented, much as Justices Black and Stewart did in Griswold two years earlier. Not because I agreed with the VA law, I don’t. But becuase I can find neither in the text nor the history of the text, a “right to marriage or interracial marriage” outside of the extratextual judicial interpretation that has created it.

And because I believe that the symmetrical view that was expressed in 1866 by the Framers and repeated by Justice Field in 1883 and by CJ Taft in 1927 and supported by well over 50 Federal and State Court precedents, was the correct one per the original understanding.