""The legal justifications underpinning the right to an abortion are foundational to other key decisions as well: Griswold v. Connecticut, which ruled states could not outlaw contraception; Loving v. Virginia, which ruled states could not outlaw interracial marriage; Lawrence v. Texas, which ruled that states could not outlaw sodomy; and Obergefell v. Hodges, which ruled states could not outlaw same-sex marriage. ""
Loving v. Virginia's holding is primarily based on equal protection not due process. This is an important distinction, as the substantive "right to privacy" the other cases rely upon is not required to uphold Loving. I am not surprised a historian by trade would miss this point.
That's a good point but I would add that if you believe (as Alito does) that all these decision have no basis in constitution, it seems irrelevant whether the justification is due process or equal protection.
I don't believe that is true. Equal protection claims are far easier to maintain than substantive due process claims. Alito is attacking these purported rights under the due process regime. Loving v. Virginia was held under equal protection not the right to privacy. Substantive due process is more highly criticized by legal commentators than plain equal protection claims.
"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass."
""The legal justifications underpinning the right to an abortion are foundational to other key decisions as well: Griswold v. Connecticut, which ruled states could not outlaw contraception; Loving v. Virginia, which ruled states could not outlaw interracial marriage; Lawrence v. Texas, which ruled that states could not outlaw sodomy; and Obergefell v. Hodges, which ruled states could not outlaw same-sex marriage. ""
Loving v. Virginia's holding is primarily based on equal protection not due process. This is an important distinction, as the substantive "right to privacy" the other cases rely upon is not required to uphold Loving. I am not surprised a historian by trade would miss this point.
That's a good point but I would add that if you believe (as Alito does) that all these decision have no basis in constitution, it seems irrelevant whether the justification is due process or equal protection.
I don't believe that is true. Equal protection claims are far easier to maintain than substantive due process claims. Alito is attacking these purported rights under the due process regime. Loving v. Virginia was held under equal protection not the right to privacy. Substantive due process is more highly criticized by legal commentators than plain equal protection claims.
"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass."
See Baldwin v. Missouri.
unsettling developments :(