Roe is gone! :D

[Dauphin]

Further, I fundamentally disagree with how you characterize the Constitution. Small states have the representation that they have due to it not being in anyone's interest for big states to dictate to all others. Under what you are saying is that 5 states should have the right to dictate to the other 45. There is a reason why we set up states in the first place and not just have one big country. It is okay for people in different states to want different things. Amending the Constitution is not difficult, it just requires that most areas of the country actually want the changes. WRT abortion, I would like to see an amendment, but without one, those "vast majority" of people have an even better chance of getting what they want as it is actually easier to talk with your state representative than your congressional representative. If the "Vast majority" want it, then they can make it happen pretty darn easily.

The reality is that the Supreme Court does NOT have the power here. They simply have the power to interpret what the Constitution says. Legal scholars from both sides have admitted that Roe was a very poorly written and reasoned decision. Just because it was one that many people did like does not mean it was the right decision. The Court has now rightly put that power back into the hands of the states...which interestingly are MUCH more responsive to the will of the people than the Congress is.

Consider a situation where a law is passed that bans abortion nationally - Republicans control house and senate, and presidency - and they do so in the narrow interests of their own minority population electorate who want abortion completely banned (to whatever standard may get passed).

Do you believe the current SCOTUS would rule it constitutional, on the basis of states’ rights, or might they contrive a reason to not strike it down due to political / religious or other non legal views?

[N35t0r]

The state governments are the 'will of the people', yet that same supreme court says it's not their business that states gerrymander and suppress voters so that a large portion of those same people don't have a way to have their will heard.

[PLATO]

Consider a situation where a law is passed that bans abortion nationally - Republicans control house and senate, and presidency - and they do so in the narrow interests of their own minority population electorate who want abortion completely banned (to whatever standard may get passed).

Do you believe the current SCOTUS would rule it constitutional, on the basis of states’ rights, or might they contrive a reason to not strike it down due to political / religious or other non legal views?

I believe that the court would have to be consistent with the ruling they just passed down and overturn it. They clearly believe that this power is with the states. If they are consistent in this way then I am good with that ruling (and conversely on that would overturn an opposite law). If, in fact they upheld a law like that, then we have a very big problem.

As a side note...I do have one issue with the ruling from a constitutional perspective and am unable to find a good answer anywhere. The constitution states that powers not granted the federal government are reserved to the states OR THE PEOPLE. In this case I believe the court erred in returning that power to the states and not directly to the people to decide on an individual basis. In fact, I am unaware of anywhere that the court has said that a right not enumerated in the Constitution belongs solely to the people themselves. Interesting....

[PLATO]

The state governments are the 'will of the people', yet that same supreme court says it's not their business that states gerrymander and suppress voters so that a large portion of those same people don't have a way to have their will heard.

I think it is more of the line of "Not a federal issue" than being okay with voter suppression. It could equally be used to over empower voters.

That being said, I do not see any constitutional basis for the Court not to allow federal oversight of this process. In fact, the Voting Rights Act did just this but only for certain states where discrimination was proven and rampant. While the court has heard numerous cases on this Act, it has only overturned one small portion of the act but left its major provisions untouched. As Jon likes to say...this is precedent. Given that we have this precedent, I believe Congress can expand upon this by limiting the powers of states to gerrymander. Problem here is that the current congressmen are the beneficiaries of this flawed system and have no real desire to change it.

So...once again we have to come down to the people and them acting through their state representatives. Vote for folks that will do it right and get involved with whoever is elected to make meaningful change. It is both the only way and the most powerful way.

[Dauphin]

I believe that the court would have to be consistent with the ruling they just passed down and overturn it. They clearly believe that this power is with the states. If they are consistent in this way then I am good with that ruling (and conversely on that would overturn an opposite law). If, in fact they upheld a law like that, then we have a very big problem.

As a side note...I do have one issue with the ruling from a constitutional perspective and am unable to find a good answer anywhere. The constitution states that powers not granted the federal government are reserved to the states OR THE PEOPLE. In this case I believe the court erred in returning that power to the states and not directly to the people to decide on an individual basis. In fact, I am unaware of anywhere that the court has said that a right not enumerated in the Constitution belongs solely to the people themselves. Interesting....

I think it’s hard to say a right belongs solely to a person. If a state says that right is not yours, and the federal constitution is ruled itself to have no authority to intervene, then who is the deciding authority? State courts presumably.

[Jon Miller]

I thought in a recent case (or maybe it is that people fear that the Court will rule in a future case) that the Supreme Court decided that the State Courts were not the deciding authority.

JM

[Dauphin]

So then who?

Say SCOTUS says issue X is not federal, like right to an abortion, and it is handed to the people or the State.

1 - if the state, they can pass a law to say it is not a right. The state court decides if the law is constitutional under the state constitution.
2 - if the people only, and the state court is not the arbiter of any state law on the subject, then isn’t it being said either that a) the state can’t pass any such law, and by definition the federal constitution is being used to give everyone a right to choose or b) the state can pass any law they like on the issue with no judicial oversight?

I’ve generally understood the unenumerated rights of the people to mean a right that is implied to be true for all people and not variable state to state. Handing a right to the people means it cannot be infringed by state or by federal bodies. I.e., point 2a above.

[Jon Miller]

WASHINGTON — The Supreme Court announced on Thursday that it would hear a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions.

The case has the potential to affect many aspects of the 2024 election, including by giving the justices power to influence the presidential race if disputes arise over how state courts interpret state election laws.

In taking up the case, the court could upend nearly every facet of the American electoral process, allowing state legislatures to set new rules, regulations and districts on federal elections with few checks against overreach, and potentially create a chaotic system with differing rules and voting eligibility for presidential elections.

“The Supreme Court’s decision will be enormously significant for presidential elections, congressional elections and congressional district districting,” said J. Michael Luttig, a former federal appeals court judge. “And therefore, for American democracy.”

Protections against partisan gerrymandering established through the state courts could essentially vanish. The ability to challenge new voting laws at the state level could be reduced. And the theory underpinning the case could open the door to state legislatures sending their own slates of electors.

It is one thing to agree to hear a case, of course, and another to rule on it. But four justices have already expressed at least tentative support for the doctrine, making a decision accepting it more than plausible. The court will probably hear arguments in the fall and issue its decision next year.

Currently, Republicans have complete control over 30 state legislatures, according to the National Conference of State Legislatures, and were the force behind a wave of new voting restrictions passed last year. And Republican legislatures in key battleground states like Wisconsin, Pennsylvania and North Carolina have used their control over redistricting to effectively lock in power for a decade.

Democrats, in turn, control just 17 state legislatures.

The case concerns a voting map drawn by the North Carolina legislature that was rejected as a partisan gerrymander by the State Supreme Court. Republicans seeking to restore the legislative map argued that the state court was powerless to act under the so-called independent state legislature doctrine.

The doctrine is based on a reading of two similar provisions of the U.S. Constitution. The one at issue in the North Carolina case, the Elections Clause, says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

That means, North Carolina Republicans argued, that the state legislature has sole responsibility among state institutions for drawing congressional districts and that state courts have no role to play.

https://www.nytimes.com/2022/06/30/us/politics/state-legislatures-elections-supreme-court.html

I am pretty sure that there are somewhere between 2-5 votes to effectively end democracy in the US.

JM

[PLATO]

It is almost as if SCOTUS is pressing the people for the long avoided new Constitutional Convention. At the very least we need a new Voting Rights Act that would put the independent state legislature theory up against federal authority to enforce non-discrimination. Sigh...The few years sure have the put world wide change on the table. I wonder if we are seeing the era of freedom coming to a close.

I am pretty sure that there are somewhere between 2-5 votes to effectively end democracy in the US.

Its possible that the founders never intended there to be true democracy. The powers that they granted to both the federal and state legislatures are very extensive and in many cases demonstrate a lack of confidence in the people. Maybe EPW is right (in a way). Maybe something does need to be done to revamp the Constitution. It has worked well all these years because people were not stupid enough to charge headlong into the gray areas. Now we are beginning to see the flaws in the system....sigh.

[Jon Miller]

Or we could recognize that the state legislatures are bound by the laws that they agreed to be bound by (such as state constitutions/etc).

If some state legislature wants to have sole power in determining federal elections in that state, what is stopping it from changing the constitution of the state and so on to do so? Well, what is stopping it is that the people of the state don't support such anti-democratic actions and while the Republicans have a super majority in many state legislatures, they actually only have ~50% or so of the vote of the state and so don't necessarily control the governor/etc. Their super-majority status in the legislature, in many states, is based solely on the gerrymandering they did in ~2010.

Consider Wisconsin in 2018. The Assembly had 36 Democrats and 63 Republicans elected in that year. The popular vote was 1,306,878 for Democratic Assembly persons and 1,103,505 for Republican Assembly persons. Evans, a Democrat, was elected governor.

JM

[Jon Miller]

There is also the point that the independent state legislatures doctrine implies that a legislature could decide that there wouldn't be any more elections unless they call them and that the divisions for elections could be set right before the election that they call so that the makeup is exactly as they want (already sorta happening in places with gerrymandering) and effectively end democracy for ever in that state.

One of the things stopping that right now is that the states have constitutions and laws which the governors and legislatures have to follow. But this doctrine would put an end to that.

JM

[giblets]

If you don't like the system being rigged and unfair just convince the current beneficiaries to change it

[ZEE]

I am not surprised by any of this, in fact I wonder what took so long.

[PLATO]

If you don't like the system being rigged and unfair just convince the current beneficiaries to change it

Or vote them out.

[giblets]

Voting in states you don't live in isn't legal.