I read an interesting piece on 14th Amendment of the US Constitution today. It was written Heather Cox Richardson, an American history professor. We’ve only been free subscribers for a week or so and enjoy these articles.
It covers quite a bit but I just wanted to comment on one part of it:
And so the Fourteenth Amendment gave the federal government the power to protect individuals even if their state legislatures had passed discriminatory laws. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it said.
About a year ago I wrote that thought the Supreme Court was wrong in overturning Roe v Wade and this quote reinforces my belief that the Constitution does give the Federal Courts the right to overturn state laws in these situations.
Justice Alto in the majority decision dismisses the 14th Amendment argument since “three quarters of the States made abortion a crime” when the 14th was was adopted. However, he gives no evidence or reference for this statement.
But assuming it is correct, it implies a quarter of states allowed abortion and it also gives no information on relevant state laws when the Constitution and the Bill of Rights were adopted. That might actually be more relevant for an originalist argument.
The 9th Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It seems to me that the Supreme Court overturned Roe based on a lack of mention in the Constitution. But this does not seem important given the 9th Amendment.
The Supreme Court based their ruling on some 19th century state laws, and even older English common law when following the Constitution would be the better course. And the decision is also taking away a right that has been in place the entire life of many Americans.