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Comment by kiba | Hacker News Reader

It is difficult to codify emerging societal consensus because the founders deliberately made it difficult, so judges get around the difficulty of codifying consensus by changing their interpretation of the law, in effect creating new laws.

The proper way to do this may be via constitutional amendment, perhaps regularly. But the structure of the constitution makes it difficult to do regular amendment and changes.

Also, just as Judges can change their interpretation of the law for the better, they can also do the reverse. It would be better for example, if abortion rights was made more explicit or made outright a right guaranteed by the constitution.

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> if abortion rights was made more explicit or made outright a right guaranteed by the constitution.

It is, the right of security in your person is the right to body autonomy.

Without the latter, you do not have the former.

Sadly, the only amendment to the constitution that reactionaries recognize to mean anything is the second. (And even with that one, they drop half the words to come to the conclusion they want.)

Where is there a “right to bodily autonomy” in the constitution, and where does it say such a right overrides the legislature’s power to define the scope of homicide law? Roe got it from Griswold and Griswold got it from “penumbras.” It’s constitutional “law” from the mid-20th century, when old white men could just pull things out of their butt and say “that’s the law.” It’s like psychology before it was scientific and empirical.

What’s “reactionary” about believing that stuff that’s in the constitution is the law and stuff that isn’t isn’t? The “right of the people to keep and bear Arms, shall not be infringed” is not only in the Constitutional text, but gets its own whole-ass amendment. (And nobody is dropping any words. It says “militia” not “military.” The militia was a bring-your-own-gun concept at the time the second amendment was written.)

There's a right to the security of your person and effects, which requires the right to body autonomy. How can you be secure in your body without being able to control it as you see fit?

Control of your own body is the very first, most fundamental form of freedom. If you don't have it, the rest is window dressing and checkers on a taxi.

The 2a reactionaries drop the 'well-regulated' part when they read it.

> There's a right to the security of your person and effects, which requires the right to body autonomy. How can you be secure in your body without being able to control it as you see fit?

The 4th amendment doesn’t provide some abstract “right to the security of your person.” It provides a very specific right: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It’s a right to be free of unreasonable and warrantless searches. Nobody seriously believes that this preclude the government from regulating medical procedures such as abortion. You would be outraged if someone tried to read a contract in a similarly hand-wavey fashion in a way that was contrary to your interest.

You’re resorting to divine law again. Who says the right to bodily autonomy is the most “fundamental freedom?” And even if it is, where does the Constitution say it protects anything someone calls a “fundamental freedom?” And even if there is a right to bodily autonomy, how do you figure it bars the government from making it illegal to kill a human life you created?

“Well regulated” means you can require gun licenses and things like that. How do you figure it can be used to ban guns altogether?

It's the right to be free of unreasonable or warrantless searches.

> Who says the right to bodily autonomy is the most “fundamental freedom?”

Let's extend that line of argument: Who says the term "fundamental freedom" doesn't include the right not to be enslaved based on your skin color? No, it wasn't the Thirteenth Amendment, which merely codified that right: It was four years of one of the most-destructive wars the world had then ever seen, leaving hundreds of thousands of Americans dead or maimed, and the South impoverished for the better part of a century.

Conversely, the South (purportedly) seceded from the Union because a few thousand of its oligarchs and their acolytes felt that they had a "fundamental right," a divine right even, to continue to enslave millions of kidnapped Africans and their descendants. That didn't work out so well for them (nor, sadly, for the liberated blacks).

Ultimately, when claims of "fundamental rights" mean enough to enough people, those claims will be vindicated — or not — by force of arms.

TL;DR: FAFO — one way or another.

> Who says the term "fundamental freedom" doesn't include the right not to be enslaved based on your skin color?

EDIT (it's too late to revise the post above): Obviously, it should be, "Who says the term 'fundamental freedom' includes [not, 'doesn't include'] the right not to be enslaved based on your skin color?"

California could invade Texas for violating the “right to abortion.” Texas could invade California for violating the “right to life.” The US could invade Afghanistan for violating “women’s right to an education.” That doesn’t mean “human rights” exist. It just means that one society can impose its moral preferences on another through military force. “Human rights” just rhymes with “exercise of power.”

You didn't answer his question.

> Human rights” just rhymes with “exercise of power.”

Ultimately, yeah.

> How can you be secure in your body without being able to control it as you see fit?

But apparently they still made extra laws for homicides and manslaughter (in the states), and taking drugs is also regulated with explicit laws, even though what you put in your body is a big part of controlling your body, ain't it?

> Also, just as Judges can change their interpretation of the law for the better, they can also do the reverse. It would be better for example, if abortion rights was made more explicit or made outright a right guaranteed by the constitution.

Yes, I agree about the possibility of reversal!

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At the risk of going on a tangent:

There's some argument to be made that eg foreign policy is best handled at the federal level, but other things like rules on acceptable levels of noise or the schedule for garbage collection should be handled my more local authorities. It's easy to see that eg Florida has very different concerns about garbage rotting away in the hot weather compared to Alaska perhaps worrying about attracting polar bears?

See https://en.wikipedia.org/wiki/Subsidiarity

> Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The Oxford English Dictionary defines subsidiarity as "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level".[1] The concept is applicable in the fields of government, political science, neuropsychology, cybernetics, management and in military command (mission command). The OED adds that the term "subsidiarity" in English follows the early German usage of "Subsidiarität".[2] More distantly, it is derived from the Latin verb subsidio (to aid or help), and the related noun subsidium (aid or assistance).

If you care about local self rule and subsidiarity at all, rules on abortion are something that should probably be handled by perhaps the counties or at most the states.

Compare also how things like education, traffic rules and manslaughter are handled by the states.

Curiously enough, Germany handles rules on abortion with an explicit law at the federal level, most other healthcare regulations being done at the state level. I wonder what the history there is. Perhaps it wasn't historically seen as particularly related to healthcare?

In any case, I agree that an explicit rule on abortion on any level is probably better than just relying on judges.

Laws can't and shouldn't handle every case explicitly, and it's good to have judges. But if you have an issues that's so politically prominent, it makes sense to give it an explicit rule.

It’s funny you mention German law, because technically the law in Germany is that abortion violates the right to life guaranteed in the Basic Law: https://en.wikipedia.org/wiki/German_Constitutional_Court_ab...

It is in fact technically still illegal, with some formal exceptions to punishment: https://en.wikipedia.org/wiki/Abortion_in_Germany

>Curiously enough, Germany handles rules on abortion with an explicit law at the federal level, most other healthcare regulations being done at the state level. I wonder what the history there is. Perhaps it wasn't historically seen as particularly related to healthcare?

Going on a tangent here, but one reason is that the law predates both the federal states (in their current form) and healthcare regulations.

The relevant paragraph 218 StGB dates back to the creation of imperial law in the German Empire of 1871 and was later carried over by the successor states. Compulsory health insurance as a cornerstone of the federal healthcare system was mandated by Bismarck some 12 years later. (140 years ago, and some countries still dont have that, smh)

But you're also right in that it wasn't made in the context of healthcare, but is actually a (priviledged) case of homicide law - which is obviously federal.

It's got a quite interesting history really. I don't know how well this translates, but if you're curious, here's some in-depth info: https://www.bpb.de/shop/zeitschriften/apuz/290795/kurze-gesc...

> But you're also right in that it wasn't made in the context of healthcare, but is actually a (priviledged) case of homicide law - which is obviously federal.

That's only 'obviously federal' in Germany. In eg the US manslaughter and murder are handled by the states.

Oops, of course you're right, I didn't think of that.

Well, the confederacy believed in subsidiarity.

Well, and Hitler was a vegetarian. What's your point?

Btw, do we have any sources / evidence for whether the confederacy only believed that specific point for the specific question of whether the states or the union should decide about slavery?

Or did they also have differences in opinion from the northerners on eg the role of municipalities and counties in educational policy or monetary questions etc?

The point is we generally agree that some human rights are too important to leave to local jurisdiction. They are universal, and everyone has an interest is seeing them upheld.

Yet, manslaughter and murder are handled by the states in the US, and that seems to work out just fine.

I can hardly think of a human right more important and fundamental and universal than the right not be murdered.

What founders are you referring to? Do you realize this is about a legal decision in Brazil?

How do you decide what’s “better?”

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