According to the majority, no liberty interest is present – because (and only because) the law offered no protection to the woman’s choice in the 19th

[Ostap]

“According to the majority, no liberty interest is present – because (and only because) the law offered no protection to the woman’s choice in the 19th century,” they wrote, referring to the addition to the constitution of the 14th amendment, which said no state shall “deprive any person of life, liberty, or property, without due process of law”.

“But here is the rub,” they wrote. “The law also did not then (and would not for ages) protect a wealth of other things.”
aljazeera

Hello, teachers. I'm puzzled by the bolded part. As I understand it, it says that the majority (the Republican judges that overruled Roe v. Wade) are arguing that they are not going to overrule other cases (same-sex marriage, contraception , etc), Is it right so far?

And then the quote: "because (and only because) the law offered no protection to the woman’s choice in the 19th century". Whose opinion/argument is that? The majority judges', or the minority dissent judges'?

 

[5jj]

Please tell us where you found your sources.

 

[teechar]

The OP says it comes from the notorious Aljazeera.

 

[Skrej]

“According to the majority, no liberty interest is present – because (and only because) the law offered no protection to the woman’s choice in the 19th century,” they wrote, referring to the addition to the constitution of the 14th amendment, which said no state shall “deprive any person of life, liberty, or property, without due process of law”.


And then the quote: "because (and only because) the law offered no protection to the woman’s choice in the 19th century". Whose opinion/argument is that? The majority judges', or the minority dissent judges'?

It begins with "According to the majority", so why would you think it might be a minority opinion? Everything in bold is part of that majority opinion.

 

[Ostap]

It begins with "According to the majority", so why would you think it might be a minority opinion? Everything in bold is part of that majority opinion.

Then I seem to not understand the causal link between "no liberty interest is present" and the part following "because". Or maybe even the "no liberty interest is present" part.

 

[5jj]

The part following because explains why no liberty element is present.

 

[Ostap]

The part following because explains why no liberty element is present.

Yes, it's clear. But what is it all about? Could you rephrase the bolded part in the OP, maybe that'd make things clearer?

 

[SoothingDave]

It begins with "According to the majority", so why would you think it might be a minority opinion? Everything in bold is part of that majority opinion.

It is quoting from the dissenting justices. The minority opinion.

More exactly, it is the dissenting justices giving their spin on the majority opinion. The minority is saying "this is what the majority is saying" and giving it the worst possible interpretation.

 

[Skrej]

Yes, it's clear. But what is it all about? Could you rephrase the bolded part in the OP, maybe that'd make things clearer?

Because (and only because) there weren't any laws offering protection to women's choice in the 19th century then there is no issue of liberty present (referring to the original Roe v Wade decision which was overturned by this decision).

Some context:
The 14th Amendment, ratified in 1868 (hence the 19th century reference), states (in part) that nobody can be deprived of life, liberty, or property without due process. The 1973 Roe v Wade decision was based largely on the 14th Amendment, and that denying the right to choose an abortion was a liberty infringement.

 

[Ostap]

It seems like the majority actually said that their decision doesn't affect or relates to the "liberty" issue. But the minority interpreted it as if the majority said: the law (the constitution) did not defend liberty ("the woman’s choice") in the 19th century, so we are not going to do that now either.

Is that correct?

 

[5jj]

so we are not going to do that now either.

Not going to do what?

The only thing the minority of justices who disagree with the decision can do is to explain why they think the decision wrong. That doesn't change anything.

 

[Ostap]

Not going to do what?

defend liberty ("the woman’s choice")

Is that it?

The only thing the minority of justices who disagree with the decision can do is to explain why they think the decision wrong. That doesn't change anything.

But they are also explaining (or giving their reading of) why the majority think the decision is right. And that's confusing the matter.

 

[5jj]

The Supreme Court has ruled that that women do not have a constitutional right to abortion.

But they [the minority]are also explaining (or giving their reading of) why the majority think the decision is right. And that's confusing the matter.

i don't see why. They are saying "The majority think that they are right because of X, but we think that they are wrong (because of Y).

 

[Ostap]

I found some more context which makes it clearer:

“‘There was a time,’ Casey explained, when the Constitution did not protect ‘men and women alike.’ But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it.” (15)

“It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.” (18)

“According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma, not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. (27)”

It looks like the issue is that (according to the minority's inetrpretation) the majority think the law hasn't changed over time - it never protected "liberty", and it doesn't now. But the minority argue that times have changed, and the law has too (and all the cases listed in italic confirm that).
Is that the idea?

 

[SoothingDave]

This is really all beyond the scope of a language website.

The 14th Amendment provides equal protection to all. It was added after slavery was ended by the Civil War. 13th ended slavery; 14th guaranteed equal protection for all. Part of that was guaranteeing that no one could be deprived of "life, liberty, or property without due process of law."

Were the liberties guaranteed by this the liberties in existence at the time? Or are they any liberties that the courts brought into existence since then?

That is one of the central dividing issues between theories of constitutional law. One looks to original ideas "what did the people who wrote this mean at the time?" The other looks at "what do the words mean now?"

 

[Ostap]

This is really all beyond the scope of a language website.

The 14th Amendment provides equal protection to all. It was added after slavery was ended by the Civil War. 13th ended slavery; 14th guaranteed equal protection for all. Part of that was guaranteeing that no one could be deprived of "life, liberty, or property without due process of law."

Were the liberties guaranteed by this the liberties in existence at the time? Or are they any liberties that the courts brought into existence since then?

That is one of the central dividing issues between theories of constitutional law. One looks to original ideas "what did the people who wrote this mean at the time?" The other looks at "what do the words mean now?"

It's a language question because I'm asking about the meaning of a specific phrase:

no liberty interest is present – because (and only because) the law offered no protection to the woman’s choice in the 19th century

And I'm giving my reading of the quote, which is:

the law hasn't changed over time - it never protected "liberty", and it doesn't now.

Is my understanding correct?

 

[SoothingDave]

It's a matter of constitution, not law. But, yes the idea of interpretation is always there. One side says "we had a right and now it's been taken away." The other side says "there never was such a right, previous court rulings were in error."

Both sides agree that the 14th amendment protects "liberty." The question is whether "liberty" includes a certain medical procedure that many consider to be the taking of a human life. "Liberty" has never been understood to be the freedom to end other lives without due process.

One side says "the Constitution is a 'living document' whose meaning changes over time." The other side says "the entire point of writing down a constitution or a law is that there is some meaning to the words that everyone agrees upon at the time of the writing. If changes are needed, amendment processes exist."

Note that the state of affairs now is that the people can use democratic processes to write the laws they see fit on the subject,

 

[Ostap]

Now it's clear!