I would suggest the main reason Mr. Posner keeps pretending that the critique of "originalism" or even "Scalia's Originalist Approach" is "ambiguous" is that it allows him to continue the pretense that Scalia's approach has any sort of defensible basis. So to answer Mr. Posner's questions

• Yes, Scalia is dishonest because he himself does not adhere to the very doctrine he preaches (witness his decisions in Kelo, Raich and BushVGore)
• Yes - the applicaion of "originalism" itself is dishonest because it is simply bio-physiologically impossible to set aside your own contemporary acculturization sufficiently to truly think like the original authors did. Consider how someone like Jefferson - who had a very low view of women's intellectual capabilities - would wrap his head around Women's Suffrage and the Equal Protection clause as it applies to women.
• Yes - the very concept of "originalism" is dishonest because it provides no useful mechanism for resolving the conflict between the "original intent" of the authors and the acretion of alternative viewpoints as expressed in subsequent amendments. Sure, where an Amendment explicitly contradicts a previous Constitutional enumeration, the outcome is clear. But how do you resolve the impact of "equal protection" in the context of those individuals the founding fathers did not consider fully "persons" (such as native americans)? The answer is that you cannot resolve it in any logically consistent manner. And this applies to a host of other issues.

So PLEASE Mr. Posner. STOP PRETENDING that there is any such thing as a "Scalia's Originalist Approach". He has none.

And YES, that which you most fear:

then Republicans will make sure to appoint people who will either (1) adopt a methodology that produces conservative outcomes, or (2) manipulate legal materials in order to produce conservative outcomes. Democrats will appoint people who will do the same, albeit in the liberal direction

Is in fact, the true history of the Supreme Court. Your throw away assertion:

If [Balkin] is right, then we would have seen greater policy variance over time (at least, at the national level) but not any great difference in the policy "mean."

isn't true. For much of the SCOTUS history, the US Government was run by a fairly narrow and elite selection of the populace. A group who's homogeneity accross political parties was in many ways NARROWER than it currently is even within the two major parties (White, wealthy, educated, land-owning men). It is no coincidence that the SCOTUS rulings demonstrate increasingly broad policy variance as the voting franchise expands (some minorities after the Civil War, then Women, then more minorities, then younger people).

So Mr Posner, please abondon the pretense of Originalism - it is but a smoke screen that you, Scalia and others deploy to rationalize your particular brand of Political Legal beliefs.

But how do you resolve the impact of "equal protection" in the context of those individuals the founding fathers did not consider fully "persons" (such as native americans)?

This one is so easy degs. Even back then not all founding fathers didn't consider some individuals not fully "persons"

There were men who thought that black people were included in the definition of "persons" but had to compromise in order to move on. They figured these generous fundamental ideas would prosper.

As a matter of fact what was in many founding fathers' minds can be found in their other writing. Because Scalia's problem is that he seems unable to actually get it right what these founding fathers were thinking doesn't mean it can't be done.

IOW you pick and choose those authors you agree with and ignore the ones you disagree with? How is that type of "originalism" any different than contemporary understanding?

There doesn't have to be a right to abortion in the Constitution. No more so than there needs to be a right that you can play an Xbox while listening to an ipod. They're not prohibited, therefore not illegal.

"involuntary servitude" is not allowed under the Thirteenth Amendment. I could argue the right to Privacy, but this administration has eroded it to the point where there's precious little left of that.

Complete nonsense. Abortion were mostly prohibited until they were guaranteed as a civil right manufactured from the constitution with Roe v. Wade.

To make abortions consitutional an actual amendment has to be added.

"MOSTLY" doesn't count. if there is no 100% consensus, then there is no common law. and if there is no common law, then there is no right to regulate.

The key is that your premise that

"there is no right to abortion in the Constitution"

Is simply wrong. Am 9 explicitly says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So unless there is an explicit delegation to The Government of the right to regulate reproduction, then that right is inherently "Retained By The People".

So

1. There is no delegated right for The government to regulate reproductive Rights in the US Constitution
2. There was no CONSENSUS about what abortion regulation was at the time of "incorporation"
3. Am 13 precludes forcing a woman carrying to term.

So tell me again how the US Constitution doesn't give citizens the right to abortion?

You make some case. Probably one thought up long before you ever considered it and yet in Roe v. Wade your logic lost out to a right to privacy claim. Look it up.

Your argument around Am 9 doesn't quite cover abortion because for a long time a fetus was considered a person (i.e. murder consideration) and abortions were done to save women's lives mostly (as I recall). So whatever "retaining" you are talking about your are actually going to have to document somehow. Oh, by the way, the govt. retains the right to prohibit murder. That is the logic you're fighting. You should probably get that straight first.

On Am13, it is a feminist stretch to claim sexual enslavement to men when "forced" to carry to term. Not really something that you've documented either.

Again, how SOME people considered fetuses isn't relevant. What matters from a constitutional prespective is

1. is the authority to regulate enumerated in the US Constitution? If not then
2. Was there consistent common law in place at the time of incorporation? if yes then
3. Is there an explict protection within the Constitution that terminates that common law.

Now Roe very clearly explored #2 and found that there was no such common law, and thus there was no inherent right to regulate.

The counter arguement then was the same one you deploy - namely a compelling societal interest. You call it "murder" except that until there exists the concept of a "fetal person" which to date does not exist - there is no murder that can be regulated. But the argument still was about the "state's compelling interest" in "promoting life". Which meant that this now had to pass the "strict scrutiny" test And this is where it was found to be in conflict with the fundamental right to a prohibition on government intrusion into all manner of aspects of our lives as specifically, but not competely detailed in Am 4. And thus the right to abortion GENERALLY was found to exist as a consequence of Am 9 AND Am 4.

Now the Am 13 limit has been brough up at the appellate level, but because it only guarantees a right to a more narrowly restricted type of abortion (RU-486 etc.) - one that was not widely practicable at the time of Roe it was not rased as an issue. But how you get the idea that the Am 13 issue is dependent upon "enslavement to men" is beyond me.

WRT Abortion there are two states that we have to address:

1. There is no legal fiction of a "fetal person" - but as with Roe the state asserts a "compelling interest" in "promoting life"
2. There is a (as there may be at some point in the future) legal fiction of a "fetal person" with some limited set of personhood rights.

In CASE #1, it is society as a whole that is compelling the host woman to carry to term. This is no more different than if The Government suddenly decided that because AB Negative blood type exists in only 1% of the population, that all AB Negative persons be required to donate a pint of blood a month: namely a compelling societal interest (saving lives with blood transfusions) and a government compunction to provide a service against the willl of the person being required to deliver the service.

Clearly such a blood donation law would violate the involuntary servitude clause without "enslaving" the donors to their possible recipients, but rather to society in general.

So too with abortion and AM13. If there is no "fetal person" then the involuntary servitude is being demanded by society at large. And Am 13 precludes that.

So what about the CASE #2 - where there exists a "fetal person" - where you would call it "murder". This is where the type of abortion becomes an issue. In this case the servitude is clearly to the "fetal person" - which being a legal person, is now demanding involuntary servitude from the host woman. The woman of course is precluded from committing murder so she cannot directly harm the fetus. But Am 13 precludes the "fetal person" from requiring ANY involuntary servitude from the host woman.

The host woman clearly has a right to travel, move, eat, sleep etc. without permission of the fetus because those are actions on her body. She can even donate blood if she so chooses. Thus as long as she takes actions who's direct effects are limited to her body, she is not harming the fetus directly. So if she takes RU-486 or any similar hormonal stimulant that does not cross the placental boundary, then she is in the clear. Similarly if she undergoes surgery to cut off HER blood flow to the placenta, she is not directly harming the fetus.

To preclude her from acting in such an manner is to toss out Am 4 and Am 13.

Now of course if The Government had a teleportation device and could extract the fetus from the host woman with no adverse consequence to her, then a law could be passed requiring such extraction, but the termination of blood flow to the placenta could not be prohibited.

Then of course once the "fetal person" begins to be a potential sepsis threat to the host woman, it has ceased to have "personhood" status, and can be extracted via DNC.

so in this case the servitude would clearly be to the fetus and again not to any sort of "male enslavement".

In either case, Am 13 is pretty clear that compelling a woman to carry to term, either in the interests of society or in the interests of the fetus, simply does not pass Am 13 scrutiny without any sort of femnist claim of sexual enslavement.

1) Does the state have a right to regulate physicians and prescription medicine? If it does what are the ramifications to abortions? Can society say, "Yes, go have an abortion, you just can't use our physicians or our drugs?"

2) Is the state liable to fund abortion fees? Can insurance companies be required to cover abortion?

3) If a 7 month old fetus is "viable" is the state able to enslave a woman to carry said fetus to term, why? If not, is the state required to extract the fetus and bear the cost of NICU (neonatal intensive care unit)?

4) Can the state "regulate" a drug addict or alcoholic who is damaging a fetus during a pregnancy or only after the child is born with defects, or not at all? What interest does the state have in this? Can the state force an abortion when the mother is clearly damaging the fetus?

5) As a matter of fact do you know if abortion is regulated today? (It is regulated so society must have an interest despite what you claim.)

6) To speak in your terms this once in regards to a fetal person existing. Joint property rights probably apply the to placenta. Furthermore, if your direct action leads to the death of a person even if they are squatting on your property or even near it it would still be murder.

For example, if I had a damned resevoir and knowingly broke an overflow mechanism so that the damn broke and drowned other people on their own property it would be called murder.

7) Right to privacy is all Roe v Wade could go on. Smarter people than you worked it out already.

Roe v. Wade is completely manufactured. If you want the right you have to put it into the constitution.

Degs you wrote too much and said little :0)

Roe v. Wade is completely manufactured. If you want the right you have to put it into the constitution

Simply wrong. The US Constitution is a delegation of powers TO THE GOVERMENT. Anything not explictly delegated to the government, the Government cannot use force to compell. Am 9 EXPLICITLY reminds everyone that all other rights - such as the right to an abortion - are retained by the people

1) Does the state have a right to regulate physicians and prescription medicine? If it does what are the ramifications to abortions? Can society say, "Yes, go have an abortion, you just can't use our physicians or our drugs?"

Yes and no. Yes COMMERCE can be regulated - but only as commerce. If it is an efficacious medicine which has legitimate usage for human health, then no, the US government cannot prohibit access to such drugs because that fails the 'strict scrutiny test'.

2) Is the state liable to fund abortion fees? Can insurance companies be required to cover abortion?

Maybe. Depends on how the authorizing legislation is written. A specific exception prohibiting abortion itself probably is not Constitutional. Prohibiting ALL reproductive medicine though - including treatment for Men's prostrate - would be.

3) If a 7 month old fetus is "viable" is the state able to enslave a woman to carry said fetus to term, why? If not, is the state required to extract the fetus and bear the cost of NICU (neonatal intensive care unit)?

Am 13 is clear that under NO circumstances can anyone be enslaved for any reason and involuntary servitude can only occur as a punishment for a crime. If the state cannot extract the fetus without touching the host woman - it cannot do so if the woman refuses (ie teleportation would be the only viable solution then and yes teleportation does not exist). And since this is a "state interest" then clearly the state has the obligation to pay for it all.

4) Can the state "regulate" a drug addict or alcoholic who is damaging a fetus during a pregnancy or only after the child is born with defects, or not at all? What interest does the state have in this? Can the state force an abortion when the mother is clearly damaging the fetus?

Some states have tried this regulation and it has not been tested at the SCOTUS level. But until there is such a thing as a "fetal person" then I see no basis for the state having an interest. Now if the state has no right to regulate a woman's reproductive rights, it has no right to force an abortion.

OTOH, if the state is allowed to hijack a woman's reproductive organs for carrying to term, then the state could also regulate compelled abortions.

5) As a matter of fact do you know if abortion is regulated today? (It is regulated so society must have an interest despite what you claim.)

It is regulated ala Roe which asserts a state interest but which didn't raise Am 13 issues. So until this gets litigated, states will regulate. But that doesn't mean that regulation is consistent with the US Constitution. And eventually the Am 13 issue will be raised at the SCOTUS level.

6) To speak in your terms this once in regards to a fetal person existing. Joint property rights probably apply the to placenta. Furthermore, if your direct action leads to the death of a person even if they are squatting on your property or even near it it would still be murder.

Nope. The uterine side of the placenta is genetically 100% the host woman's. No "joint tenancy" exists over another person's body. Period. And no, if you are illegally on my porperty and I act in a manner that does not directly harm you such as evicting a homeless person from a corporate lobby into a freezing night, then no it legally cannot be murder.

For example, if I had a damned resevoir and knowingly broke an overflow mechanism so that the damn broke and drowned other people on their own property it would be called murder.

Because your action directly operates outside of your property your example doesn't hold. Wrong example. The correct one is evicting homeless people into a freezing winter's night from a warm corporate lobby.

7) Right to privacy is all Roe v Wade could go on. Smarter people than you worked it out already.

Nope. Am 13 has been raised before at appellate level. But privacy extends a broader protection than Am 13, just not as absolute. So then it was a legal strategy as to which path to go down.

I've asked the Am13 question to a variety of atty's including one who has argued before SCOTUS, and none have found anything wanting with the arguement.

I'll stick to one example at a time.

I am a rich land holder. I own property with a damn that has an overflow mechanism which if broken, will in a torrential rain cause a backup that would break the damn and likely washout property owners below my property. I figure that if I wash them out I can buy their land and expand my property. So I break the overflow mechanism, it rains, the damn breaks, the people below are washed out and some die.

Did I commit murder? Of course I did.

BTW, there is an idea of right to access when property is surrounded by someone else's property. I can create a road right through your property to get to mine. Your property ownership is not absolute. You can buy property w/ the mineral rights belonging to someone else. When you have sex you ostensibly have consented to given the fetus rights to your mineral property. The fetus in good faith accepts that gift and begins to work to create whatever product or service you contracted it do. Plancental ownership is shared. At least half the DNA belongs to the fetus.

Your fabricated arguments on this angle are so ridiculous. Especially the idea of placental ownership and teleportation. I can just hear them in some future Supreme Court hearing now. :-)

The State of New York licenses Physicians. Licensing in the State of New York could be contingent on not performing abortion procedures.

Hypothetically, all the physicians of New York refuse to perform abortions. Does a woman have a right to an abortion that forces a physician to perform an abortion? No.

Can the State force a physician to offer abortions (or any procedure for that matter) if he/she is to retain their licensing? I wouldn't think so.

Can the State force a pharmacist to dispense medication he/she simply chooses not to carry? Many pharmacies don't carry the most potent pain killers for fear of robbery. Some don't carry RU486.

Why can the state force an individual to dispense a drug they are morally against. What is wrong with the idea of conscientious objector status for a civilian employee. It is hard to find pharmacists, as an employer why can't I hire a conscientious objector even if it costs me RU486 sales while he/she is on the clock?

Simply wrong. The US Constitution is a delegation of powers TO THE GOVERMENT. Anything not explictly delegated to the government, the Government cannot use force to compell. Am 9 EXPLICITLY reminds everyone that all other rights - such as the right to an abortion - are retained by the people

Well, if that is true why did an amendment have to added to explicitly give women the right to vote?

What services does the fetus afford the woman?

Glad you asked. She entered into an agreement to supply the fetus with its needs if the fetus would propagate half her genes. Intent? Well the actual act of procreation which allowed conception of course.