Cuomo proposes putting abortion rights in NY state constitution

[MarkD]

Anyway, this is great news. The U.S. Constitution already recognizes a right to an abortion with certain restrictions, so the state constitution should as well.

No, the U.S. Constitution is utterly silent about abortion -- silent whether a pregnant woman has a right to it and silent whether a fetus has any rights.

Roe v. Wade was an invention of the Supreme Court, it did not come from the Constitution. As Prof. John Hart Ely said back in 1973, Roe "is not constitutional law, and gives almost no sense of an obligation to try to be." (Source: http://www.nytimes.com/2003/10/27/us/john-hart-ely-a-constitutional-scholar-is-dead-at-64.html)

The Court can overturn Roe while repeating the words the Court had used on a previous occasion in which it overturned a precedent. In Olsen v. Nebraska, 1941, the Court overturned a 14-year-old precedent, Ribnik v. McBride, 1927, and as it overturned the precedent, it said:
"In final analysis, the only constitutional prohibitions or restraints which respondents have suggested for the invalidation of this legislation are those notions of public policy embedded in earlier decisions of this Court but which, as Mr. Justice Holmes long admonished, should not be read into the Constitution. Since they do not find expression in the Constitution, we cannot give them continuing vitality as standards by which the constitutionality of the ... social programs of the states is to be determined."

[MarkD]

sorry dude, the Court has repeatedly reaffirmed a constitutional abortion right

Plessy v. Ferguson, 1896, was repeatedly upheld as a precedent for over 50 years, until it was finally overturned in Brown v. Board of Education.

[MarkD]

Yes, I know, but didn't you see what I was responding to?

Anyway, this is great news. The U.S. Constitution already recognizes a right to an abortion with certain restrictions, so the state constitution should as well.

I wanted to make sure we get the nouns right.

I believe that the Constitution does not actually and always mean what the Supreme Court says it does. I have been suspicious of the Court since I was 16, 36 years ago, and I began intensely studying how the Court explains its decisions, and studying books by constitutional law scholars who clearly believe that the Court is not always right, half of my life ago, when I was 26. I believe in the philosophy of original intent. And to paraphrase Judge Robert Bork (from "The Tempting of America"),
There exists among some lawyers and judges a weary cynicism that frequently finds itself expressed in the quotation of words attributed to Chief Justice Charles Evans Hughes, "The Constitution is what the judges say it is." Hughes was hardly the first to have made the point. In 1717, Bishop Hoadly said "Whosoever hath an absolute right to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the one who first wrote or spoke them." These statements are sometimes taken to ratify cynicism. They should not be. Nobody familiar with Hughes' career would suppose he meant that power is all. It is essential to bear in mind the distinction between the reality of judicial power and the legitimacy or morality of the use of that power.
It is a truism, but it is not anything more than a truism, that for all practical purposes, at any given moment the Constitution is what the Justices says it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become void just because the Justices say it is. But behind that realism lies another fact just as real, and one with normative meaning: there is a historical Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. It is that meaning the Justices ought to utter. If law is something more than mere naked power, it was that meaning the Justices had a moral duty to pronounce. Hoadly and Hughes, far from reconciling us to cynicism, emphasize the heavy responsibility judges bear. Power alone is not sufficient to produce legitimate authority.

I believe that the Court renders misinterpretations of the Due Process Clause and the Equal Protection Clause of Section 1 of the 14th Amendment more often than any other clauses in the Constitution.