Is it ever time to pack the court? (US politics)

[Astro Cat]

Huh? Above, you asked, "I'm asking why originalists don't leave it up to the states whether they want to or not [ban semi-auto weapons]." That question doesn't "imply" your new question, i.e., "why it's a 'natural' right to own semi-auto weapons but not sawed-off shotguns?" Those two questions have nothing to do with each other.

The answer to the second question is, that semi-auto weapons are currently the most effective and widely-used weapons for the lawful purposes the 2nd Amendment protects. Banning them would flout those purposes, leaving peaceful citizens vulnerable to predators who would ignore that ban (and there would be many). Sawed-off shotguns, on the other hand, are rarely chosen or used as defensive or hunting weapons, and banning them has no real impact on the 2nd Amendment. Instead they are mainly used by criminals who wish to conceal them (though shotguns, sawed-off or not, are rarely used as murder weapons anyway, and banning them is largely a symbolic gesture).

I hope you didn't take the "dense" comment to heart, I was just playfully teasing with you for not reading my mind

So, what I would want to object, you've already given a response below. I will leave it there.

By examining the implications of the rights enumerated in the Constitution, and using historical sources to determine what liberties people exercised and took for granted at the time the Constitution was adopted. In my response to Leontiskos above, I wrote,

"It is the job of the courts to interpret that [9th] Amendment, not ignore it and leave claims arising under it for state legislatures to decide. It obliges them to examine the relevant history and, even more importantly, to determine whether a claimed but unenumerated right is consistent with or implied by other acknowledged rights, such as the right to equal protection of the law, and the right to be free of unreasonable searches and seizures of their "persons, houses, papers, and effects". Does the former imply a right to marry whom one wishes? Does the latter imply a "right to privacy"? I think they do. More broadly, is the the claimed right compatible with the grand scheme of establishing a polity in which people are maximally free to "pursue happiness" as they define it? Those are questions the 9th obliges the Supreme Court to address."

Most questions about what rights are encompassed by the 9th Amendment can be answered via those methods. The Amendment is not open-ended or all-encompassing (and thus meaningless).

The court shirked the responsibility in Dobbs, so are they not doing originalism right? Are you saying that the court is political? Because that is all that I'm getting at: that "originalism" or not, the court is political, and we should stop pretending it's not.

They got it wrong in Dobbs, but not because the Court is "political." They got it wrong because the majority (following Scalia) believes the 9th Amendment (and the "liberty" protected by the 14th Amendment) are too vague to admit of principled decisions. So they argue the Court should not try. But the very presence of the 9th Amendment in the Bill of Rights obliges them to try.

And who decided that intent doesn't include the means? How is that not a political opinion (since different people will have a different idea about whether means are included in intent, particularly based on what interests suit them)?

Because no particular means are mentioned in the Amendment, nor in any of its predecessors in State constitutions, or in any of the arguments made at the time for including it. What is mentioned is the purpose the provision aimed to serve. "Original intent," BTW, does NOT require "mind-reading." In law, "intent" is ascertained by examining historical evidence --- arguments and reasons for a law or ruling articulated by its authors and advocates and for which there is a written record. The evidence for the intent of the right to keep and bear arms is voluminous.

At the expense of sounding like a broken record, though, wouldn't the intent philosophically have to match with the technology at the time? I'm not disputing that the intent was clearly for citizens to be able to bear arms, but the "arms" the framers were thinking of were muskets, not semi-auto weapons.

And I can't stress this enough, I'm not arguing against people having semi-auto weapons here. I'm trying to argue that the courts are inserting modern sensibilities into their rulings rather than going by an original intent. The Second Amendment is just the example I'm using to do that.

So this just seems like something that can philosophically disagreed upon. One person can say, "Well I think the intent can be updated with modern technologies as long as those technologies fulfill the original intent." That seems to be the tack you take. Another person can say, "The only thing that purely fulfills the intent at the time of writing is the capability of the technology at the time."

Remember that something not being covered by an amendment doesn't mean that it gets banned. It just goes to the states to decide, right?

Are you saying that it's completely unreasonable to suppose on originalism that the Second Amendment intends to cover muskets, whereas later types of weapons must go through the legislative process and be decided by the states?

If "originalism" really means that we can interpret the Constitution vaguely and include modern reasoning based on modern principles, isn't that a lot more vague than a more "pure" originalism? Doesn't that depend a lot more on who's wearing the robe than what's written down?

I don't think it's a fatuous question at all to consider whether the writer of a document is thinking of the capabilities of technology at the time when they argue that it's OK for the private populace to own something. I feel like if we're going to be "originalists" then we need to actually consider what the writer was thinking of when they wrote down their intentions. Thinking it's OK for people to own muskets is absolutely not the same thing as thinking it's OK for people to own machines capable of killing tens of people in minutes. Now, maybe they would be fine with it. But aren't we kind of just playing games if we don't ask the question on "originalism?" And isn't that my point: that originalism is just taking the parts that we like of some kind of "full originalism," and leaving out the parts that we don't like?

Is it any more moral to own a weapon capable of killing only 1 or 2 people in minutes? How about bolt-action or lever-action rifles (non-semi-auto), which could kill 5-6 people in minutes? Any weapon can be used to kill people, and the advocates for the right to keep and bear arms, from 17th century English jurists to James Madison, were well aware of that. What limits on weapons would you suggest that would not undercut the purpose that Amendment was intended to serve? In general, we don't renounce rights or restrict liberties because they can be abused, even when we're certain some people will abuse them. We don't ban automobiles because drunk drivers kill over 10,000 people/year in the US (we tried banning booze, which caused more problems than it solved).

I'm not talking about morals, I'm talking dispassionately about what was intended by the writer. When the writer wrote it's OK to own guns, the writer was talking about muskets; that's the only thing the writer could have possibly meant. Bullets didn't even exist at the time!

It's important to note that what I mean by "it's OK to..." I mean that the federal government can't violate the right to.

Is it not obvious that Scalia agrees that the writers didn't "mean" sawed-off shotguns? Clearly that is saying that the writers didn't mean guns of any sort can't be federally regulated, or left up to states to decide. This "originalist" decided that there's a line in the sand somewhere. But he conjures it out of his own estimation (you even said yourself that the ability to regulate owning sawed-off shotguns is "mostly symbolic").

But a different set of people in robes can just up and decide that a different line in the sand is what the writers "meant" if we can do that.

The only outcome that's actually "originalist" is to say muskets are federally protected from regulation, since that's all that we know the writers intended, while everything else must be left up to states to decide.

Now again, I'm not advocating for this. I'm trying to show that originalism is either subjective to whom is wearing the robe or has unwanted consequences for nearly everybody. I think Scalia's opinion is fine. But I think calling Scalia's opinion "originalism" stretches the truth. That's all I'm getting at.

Then we have a broken country, why should we want SCOTUS to play by some vaunted rules if doing so will hurt people if those peoples' theoretical recourse is unavailable? What if we submit that whatever the court was doing, if it wasn't originalism, it was working to cause the most life, liberty, and pursuit of happiness?

The Court in Dobbs departed from "originalism," by not taking the 9th Amendment seriously. And that theoretical recourse --- democracy --- is certainly still available. Whether it will yield the result you (and I) would prefer is highly uncertain, however. That is the trouble with democracy. Personally, I'd prefer decisions about basic rights to be made by knowledgeable and perceptive scholars than by 300 million roobs, even though the former can also make mistakes.

I agree with you, but what can be done when the people in robes are extremists with an axe to grind, and the legislative branch is at the mercy of 300 million roobs that practically think the Earth is flat and have no inkling of an idea what empathy or equality are?

I don't think the system you are lauding is actually any kind of "originalism," but that is maybe splitting hairs at this point. If doing their job and interpreting the 9th and the 14th is what they need to do, then I'm all for that. But again, this court is a heavily ideologically influenced court. We can't pretend they're non-political because they are.

People like me, we have no recourse. You say democracy, but all I'll get from democracy is having to pick a state that's more friendly to my rights. But I'm lucky to be in my 30's. What of all the young people that will be stuck in backwards states with no recourse at all?

[Leontiskos]

<Here> is his Amicus Curiae brief, co-authored with Princeton's McCormick Chair of Jurisprudence, Robert P. George.

First, let me say I agree that abortions after "quickening" were not among the liberties women could freely exercise in 1789.

Okay.

But they did have that liberty prior to "quickening."

Finnis's brief advances two key arguments. The first is that 1) "Quickening" is ambiguous, and can mean either the point at which the fetus becomes “ii. 'a quick child' (a live child), understood to emerge when an embryo had developed enough to receive a rational animating principle (soul) and so had become a truly human individual," or the point at which the mother begins to feel fetal movement: "iii. 'quickening' (a “quickened child”, etc.), from the pregnant woman’s perception of a shift in the uterus’s position or her child’s movements, sometime between the twelfth and the twentieth week (or not at all), but normally about the fifteenth or sixteenth week."

He also lists a third meaning for "quickening, (i.)" i.e., the moment of conception. He doesn't rely on that one, so we can ignore it.

We can dismiss the ii. meaning of "quickening" for two reasons: First, it would be impossible for prosecutors or courts to determine whether a fetus was "quick" in that sense,

You are the one committing the non sequitur, not Finnis. In Middle English 'quick' or 'quik' meant living or alive (e.g. "The Quick and the Dead"). The connection between senses (ii) and (iii) is not difficult to discern, and Dobbs itself spells it out for us:

The original ground for drawing a distinction between pre- and post-quickening abortions is not entirely clear, but some have attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus, as one court put it in 1872: “Until the period of quickening there is no evidence of life; and whatever may be said of the feotus, the law has fixed upon this period of gestation as the time when the child is endowed with life” because “foetal movements are the first clearly marked and well defined evidences of life.” Evans v. People, 49 N. Y. 86, 90 (emphasis added); Cooper, 22 N. J. L., at 56 (“In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it” (emphasis added)). (Dobbs v. Jackson, 21)

and 2) because the whole concept of an "animating principle (soul)" is religious nonsense, referring to nothing biological or otherwise rationally or empirically ascertainable.

Right, because there is no discernible difference between a corpse and a living body! The truth is that your anti-religious animus leads you into all sorts of absurd reasoning and non sequiturs, such as trying to sell the idea that "God is unnecessary to [Locke's] theories" by quoting half a sentence from Locke, the omitted half of which relied upon God (link).

In this case you are so blinded by that animus that you spout the nonsense that "quick" cannot refer to life or the animating principle (soul or "anima"). This is absurd. <Find a dictionary> (ii) is not a theological claim; it is a claim about biological life. You seem to be a fellow with some notable intellectual capacities, but whenever anything within 100 miles of religion comes up you turn into a reactionary and reason flies out the window.

Finnis conflates those questions throughout, confusing life and existence with personhood, confusing personhood for other legal purposes with whether aborting it is prohibited, and citing court decisions handed down decades after the Constitution was adopted to support those confusions: "The American Medical Association in 1859 dismissed the fiction 'that the foetus is not alive till after the period of quickening' and urged correction of any 'defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth as a living being.'"

Well, the question is not whether a fetus is a "living being." It is, again, whether it is a person, with a right to life."

You are making the same mistake that Blackmun made, identified above. Our express topic was the historical state of abortion laws, and all you want to talk about is explicit evidence of personhood. Try adding more disjuncts to that imagination of yours.

It is a fallacy: "Welp! I can't find any explicit references to personhood in the Constitution, therefore there must be a right to abortion!" If we want to undertake the inquiry without bias we would begin by omitting an assumption for both a right to unborn life and a right to abortion. Your approach is premised on the biased approach of assuming a right to abortion.

1. Every person has a natural right to liberty, which consists in doing whatever he or she wishes to do, as long as it inflicts no injuries or losses on other persons.

Egads. This the same sort of unconstitutional silliness that Blackmun relied upon, but now we get the further admixture of Libertarian dogmas. I would encourage you to read Dobbs, or at least the first three pages:

"The term 'liberty' alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125. (Dobbs v. Jackson, 2-3)

----------

"The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” ibid.—but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example—with which entire societies of reasonable people disagree—intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution."

Again, the Constitutional question does not turn on how much agreement there is regarding some claimed liberty, but whether it was one acknowledged and exercised at the time the document was written. Pre-quickening abortion was; bigamy was not. (Though if I had my way all state laws defining, licensing, or restricting marriage would be struck down. A person could take as many spouses as would have him or her, or marry their dogs or horses or goldfish if they wished).

In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A, infra (listing state statutory provisions in chronological order).33 By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.34 See ibid. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. (Dobbs v. Jackson, 23-3)

The Court also analyses common law and the early colonial period at length, but the gist is that there is no evidence of a right to an abortion from that period (pre- or post-quickening), and there are plenty of anti-abortion laws.

Do you find it at all curious that in the midst of all these abortion laws, pre- and post-1800, we can't find a single mention of a right to abortion anywhere? If there was a right to abortion, then why didn't anyone challenge any of these laws? See:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe. (Dobbs v. Jackson, 15)

(Quoting Scalia): That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. (Casey v. Planned Parenthood; Scalia's Dissent, 979-80)

Two problems there: first, the prohibition of abortion is not "long standing;" it began in the mid-19th century.

Factually incorrect. I would highly suggest that you actually read Dobbs before you opine about it. Dobbs is precisely where the various historical claims and facts come together.

But the more important problem is Scalia's utter disregard of the 9th Amendment...

Are you aware that the only mention of the Ninth Amendment in the entirety of the Casey opinion came in Scalia's dissent? No one on the Court was desperate enough to touch the Ninth Amendment. I'm sure Scalia would have loved it had they tried.

Much like your Straussian interpretation of Locke, your historical and jurisprudential understanding of abortion in America is outdated, and was debunked years ago.

[Astro Cat]

I don't think the system you are lauding is...

Lauding isn't the right word, sorry about that GE Morton. I meant something more like "the kind of originalism that you describe..."

[Tegularius]

I understand the argument that once this starts, it's hard to stop it. But what recourse is there when a court has an illegitimate/stolen seat, a rushed though barely legitimate seat, and at least two members that lied under oath saying they wouldn't do what they just did (overturn Roe vs. Wade)?

A Republican president hasn't won the popular vote since 1988. 5 out of 9 justices were seated by a president that lost the popular election and generally gravitate towards views that the population doesn't share using dubious interpretational "theories" that are muddy from the start (e.g. Originalism).

Republican Senate power is equal to that of Democrats despite the latter representing more than 10% more US citizens.

We have a tyranny of the minority that just shattered half a century of precedent, with one of the concurring opinions calling for more blood (contraception, marriage equality -- I notice that he oddly left out miscegenation from his extremist rambling).

When is it time to pack the courts? How badly could it backfire?

The word "legitimate" merely expresses a legality without anything more substantial upholding it. That's when legitimacy lowers to expediency for those in power, however temporary, to command it.

Supreme court rulings are made by people with conservative or liberal proclivities; it didn't come down from Mount Sinai. If such a ruling of major consequence leans too much to one or the other side as in the case of Roe vs. Wade, the ultimate decision should be made by plebiscite where people are most personally and directly affected in their current and future lives. What SCOTUS rules in such cases are at best only of secondary importance. There are instances where giving the final say to any excessively small group is incipient to tyranny.

The recall of Roe vs. Wade denotes the highest court in the land having been wrong for over 50 years in their original ruling. What's most ironic, what determined it originally is now determined to be wrong in spite of none of the factors (from what I can see) upon which both decisions were made as having changed in the interim.

[Pattern-chaser]

Grenades. American people need grenades. Lots and lots of grenades. Otherwise law abiding people are at a disadvantage against those who would flout the anti-grenade law.

Every American needs their own fragmentation grenades for close combat situations and semi-automatic weapons for longer range attacks. To deny average people the weapons of war obviously would make for a more dangerous society.

We see that other western countries trail far behind the US for gun murders. Once again, the US leads the western world.

No missiles?

[Sy Borg]

Grenades. American people need grenades. Lots and lots of grenades. Otherwise law abiding people are at a disadvantage against those who would flout the anti-grenade law.

Every American needs their own fragmentation grenades for close combat situations and semi-automatic weapons for longer range attacks. To deny average people the weapons of war obviously would make for a more dangerous society.

We see that other western countries trail far behind the US for gun murders. Once again, the US leads the western world.

No missiles? 😯🤔🚀🚀🚀

Thank you. My oversight. Yes, if you don't have your own missiles and missile defence system you are at a disadvantage against criminals who have them.

Ultimately, if everyone had their own nuclear weapons capable of destroying their entire city, people would be a lot quieter and less aggressive, one way or another.

[Pattern-chaser]

Even the prophet Trump would bow to your wisdom! Keep America great!

[GE Morton]

You are the one committing the non sequitur, not Finnis. In Middle English 'quick' or 'quik' meant living or alive (e.g. "The Quick and the Dead"). The connection between senses (ii) and (iii) is not difficult to discern, and Dobbs itself spells it out for us:

"The original ground for drawing a distinction between pre- and post-quickening abortions is not entirely clear, but some have attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus, as one court put it in 1872: 'Until the period of quickening there is no evidence of life; and whatever may be said of the feotus, the law has fixed upon this period of gestation as the time when the child is endowed with life' because 'foetal movements are the first clearly marked and well defined evidences of life.' Evans v. People, 49 N. Y. 86, 90 (emphasis added); Cooper, 22 N. J. L., at 56 ('In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it (emphasis added)). (Dobbs v. Jackson, 21)"

Well, that is a strange response. The only "connection" you establish there is a verbal one, involving two uses of the term "quick." But what "quik" meant in Middle English (and still means in some contexts) has nothing to do with what it meant with regard to abortion --- as your quote above makes clear.

and 2) because the whole concept of an "animating principle (soul)" is religious nonsense, referring to nothing biological or otherwise rationally or empirically ascertainable.

Right, because there is no discernible difference between a corpse and a living body! The truth is that your anti-religious animus leads you into all sorts of absurd reasoning and non sequiturs, such as trying to sell the idea that "God is unnecessary to [Locke's] theories" by quoting half a sentence from Locke, the omitted half of which relied upon God (link).

Oh, there is a great difference between a corpse and a living body. But an unfertilized ovum is not a corpse; it is just as alive before it is fertilized or acquires your "animating principle (soul)" as after. There is no "soul" that enters the human fetus at conception, after 6 weeks, or at any other time, any more than it enters any other animal fetus at some point --- or, at least, nothing by that name for which there is any sort of evidence. It is one of those imaginary, supernatural entities deriving from Platonic idealism and postulated by many religions. Propositions asserting or purporting to describe "souls" are non-cognitive; they have no determinable truth conditions. The only "animating principles" of living organisms with any explanatory value are the laws of chemistry and biology.

In this case you are so blinded by that animus that you spout the nonsense that "quick" cannot refer to life or the animating principle (soul or "anima"). This is absurd.

I never claimed that "quick cannot refer" to souls, or life. It can refer to many things. I said the sense of that word germane to abortion is the "perceptible fetal movement" sense. Any other senses it may have are irrelevant to that issue.

(And, yes, "God" is unnecessary to Locke's theories).

(ii) is not a theological claim; it is a claim about biological life. You seem to be a fellow with some notable intellectual capacities, but whenever anything within 100 miles of religion comes up you turn into a reactionary and reason flies out the window.

It is indeed a claim about biological life, but it is a claim imputing a non-biological property for which there is no biolgical evidence. A proposition such as, "Earthworms are exemplars of the Eternal Worm Archetype" would also be about biological life --- and just as non-cognitive and vacuous.

Finnis conflates those questions throughout, confusing life and existence with personhood, confusing personhood for other legal purposes with whether aborting it is prohibited, and citing court decisions handed down decades after the Constitution was adopted to support those confusions: "The American Medical Association in 1859 dismissed the fiction 'that the foetus is not alive till after the period of quickening' and urged correction of any 'defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth as a living being.'"

Well, the question is not whether a fetus is a "living being." It is, again, whether it is a person, with a right to life."

You are making the same mistake that Blackmun made, identified above. Our express topic was the historical state of abortion laws, and all you want to talk about is explicit evidence of personhood. Try adding more disjuncts to that imagination of yours.

Er, Leon, my comment there was a a response to what Finnis said about personhood. He quotes Blackstone (favorably): "Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb . . . An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes (Emphasis added). It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours."

None of those purposes bear on whether the fetus has a right to life that precludes aborting it, and certainly not before the "infant is able to stir in the mother's womb."

It is a fallacy: "Welp! I can't find any explicit references to personhood in the Constitution, therefore there must be a right to abortion!" If we want to undertake the inquiry without bias we would begin by omitting an assumption for both a right to unborn life and a right to abortion. Your approach is premised on the biased approach of assuming a right to abortion.

Nope. It is premised on 1) the absence of any evidence that "persons" included fetuses in any other Constitutional uses of that word, of which there are several, and 2) the absence of any anti-abortion laws in effect in the states at the time.

"The term 'liberty' alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125. (Dobbs v. Jackson, 2-3)

In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A, infra (listing state statutory provisions in chronological order).33 By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.34 See ibid. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.(Dobbs v. Jackson, 23-3)

The Court also analyses common law and the early colonial period at length, but the gist is that there is no evidence of a right to an abortion from that period (pre- or post-quickening), and there are plenty of anti-abortion laws.

You're being disingenuous there, Leon. There were only "plenty of anti-abortion laws" decades AFTER the Constitution was adopted. There were NO pre-quickening anti-abortion laws at that time. Alito, in Dobbs, is also disingenuous: he says, above, "The Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy."

But when he cites the Parker decision (decided in 1845, BTW), about which he says, "But the case on which the Solicitor General relies for this proposition also suggested that the criminal law’s quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that 'to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being," he ignores that "being out of step with the treatment of pre-natal life in other areas of the law" does not render an actual law invalid. He also neglects to mention that the convictions in the Parker case were overturned by the state Supreme Court, because (it wrote), "There being no averment, in the first count in this indictment, that the woman was quick with child, or any equivalent averment, and the judge, who tried the case, having instructed the jury that it was not necessary to prove such averment in the third count, the court are all of opinion that, although the acts set forth are, in a high degree, offensive to good morals and injurious to society, yet they are not punishable at common law, and that this indictment cannot be sustained."

Alito footnotes this case with reference to another case, Mitchell v. Commonwealth (1879), "(acknowledging the common-law rule but arguing that 'the law should punish abortions and miscarriages, willfully produced, at any time during the period of gestation'); Mills v. Commonwealth, 13 Pa., 631, 633 (1850) (the quickening rule 'never ought to have been the law anywhere'); J. Bishop, Commentaries on the Law of Statutory Crimes §744, p. 471 (1873) ('If we look at the reason of the law, we shall prefer a rule that 'discard[s] this doctrine of the necessity of a quickening')." Look at all those ""shoulds," "oughts," and "prefers" --- this, from the guy who had earlier declared, "the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy."

He hypocritically supports his argument, not with the laws as they existed at the time, but what they "should" have been, in the opinions of judges 30-50 years later.

Do you find it at all curious that in the midst of all these abortion laws, pre- and post-1800, we can't find a single mention of a right to abortion anywhere? If there was a right to abortion, then why didn't anyone challenge any of these laws?

Which laws? Neither you nor Alito have cited any. And there are no mentions of a right to abortion because that subject was, at the time, "unmentionable" in polite company. But it was nonetheless legal.

Factually incorrect. I would highly suggest that you actually read Dobbs before you opine about it. Dobbs is precisely where the various historical claims and facts come together.

Ok. Maybe I overlooked something. Please point me to those laws.