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Labor has had better success in choosing good candidates, as shown in recent state byelections. Well-known South Coast obstetrician Michael Holland, who had long links to the community, seized Bega from the Liberals while Jason Yatsen-Li, a second generation Chinese-Australian, held Strathfield for Labor.

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Of course, Labor does not always get it right. You need no more proof than Les win in Fowler in the federal election on Saturday. Kristina Keneally, the former premier who led NSW Labor to a crushing defeat in 2011, was parachuted into Fowler to sort out Labors internal squabbles over the partys Senate ticket. The voters saw straight through Labor and turned to the local candidate who was far more representative than Keneally of the diverse community. The result? Labor lost a safe seat to an independent (who the Liberals had failed to keep).

Labor may have a slight edge in picking suitable candidates but its path to victory in March is far more complex than simply choosing good representatives. The federal result also reveals an ominously low primary vote for Labor in the area too low, if it translates to the state election, for the party to win in western Sydney, where it will matter.

Federal Labor went backwards in Lindsay, which encompasses the ultra-marginal state Liberal seat of Penrith, and the result in Fowler spells disaster for the newly created state seat of Leppington, which is notionally Labor but by a wafer-thin margin.

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There were mixed results for Labor in Banks on Saturday, and in what would worry party strategists, the ALP took a hit in booths in East Hills and Revesby exactly in the areas where it needs to be picking up votes, not losing them, if it has any hope in the state election.

The federal election showed that the rule book has been rewritten for both the Liberals and Labor. Votes have fragmented, and with an optional preferential system in NSW, primary votes have never been more important. The task ahead is huge for Perrottet and Labor leader Chris Minns.

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Dai Le, the perfect female Liberal candidate - rejected by NSW Liberals - Sydney Morning Herald

One of the less appealing features of Australian politics is the reflexive reaction to election results, in which the winners are hailed as geniuses and the losers are dismissed as hapless dopes. Over the years, the directors of the winning campaigns have even been given a chance post-election to expound on their brilliance in an address to the National Press Club. Their explanations of what happened have then been accepted as holy writ by the media.

To be sure, winners deserve to be grinners. The Labor Party is now in office, so it got more than a few things right. But every election result contains complexities and surely this election more than any in living memory was overflowing with them. The national electorate has hedged its bets.

Prime Minister Anthony Albanese addresses the first Labor caucus meeting at Parliament House.Credit:James Brickwood

There are still two seats undecided, but the provisional count suggests that the Coalition lost 19 seats, Labor picked up an extra nine, independents seven and the Greens three. The Albanese government has a majority of one or two.

Theres been a lot of talk about the disruptive force of the teal independents and whether the Liberals need to steer left or right (mostly right, say their media boosters) but less discussion about what the rise of the Greens will mean. The Greens look set to have 12 senators and, if they want, will be able to thwart much of the governments legislative agenda.

This doesnt necessarily mean the new government cant go on to a long and happy existence; performance and events will determine that. But there are lessons in this result for all sides and they mostly go to beliefs, philosophy and policy. One question parties should be asking themselves is: when it comes to ideology, how much is enough?

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The downfall of the Coalition government proves yet again that politics must ultimately be about more than power. Weve been here before. Theres a strong parallel between the Abbott/Turnbull/Morrison government and the Fraser government. Both served three terms. In both cases, prior to taking office the Coalition struggled to cope with being consigned to opposition and the fact the public had elected and then re-elected a Labor government.

Apart from Malcolm Turnbulls brief, ill-fated attempt to work with Kevin Rudd on an emissions trading scheme in 2009, the Liberals and Nationals during both eras squandered their opposition years. Sure, they destroyed their opponents within two terms, but they didnt have the debates about how to re-equip and develop a fresh policy perspective. Once back in office, they didnt set out to do much. All they knew was politics. All they had was politics.

By the third term, voters wanted something more forward-looking. Neither Fraser nor Morrison could provide that. Morrisons philosophical and ideological vacuity was not an accident. He was chosen out of panic after the Liberals had worked through Abbott, whose most successful setting was negative, and Turnbull, who was said to be too left-wing but was not, having agreed to stifle many of his inclinations to win back the leadership.

Original post:
The Greens could fatally wound Labor, as they have done before - Sydney Morning Herald

Unenumerated rights.

Those are the rights that may not be explicitly laid out in the words of the Constitution, but are considered essential to American life anyway.

In 1997 then-Chief Justice William Rehnquist said:

We have repeatedly emphasized that fundamental rights are those that are deeply rooted in our nations traditions.

History and tradition. Thats what Justice Samuel Alitos points to in his draft opinion that could overturn abortion rights in this country.

What else might the justices think is not deeply rooted in the "history or tradition" of the United States?

Obviously, that has implications for other cases," Kenji Yoshino says. "Same sex marriage is not deeply rooted in this nation's history and tradition. Contraception. The rights of interracial marriage."

"If we're really taking a baseline that says the right to be recognized as an unenumerated right has to be deeply rooted in this nation's history and tradition, all of those rights are now imperiled," Yoshino adds.

Today, On Point: Understanding unenumerated rights.

Kenji Yoshino, professor of constitutional law at NYU School of Law. Director of the Center for Diversity, Inclusion and Belonging. (@kenji_yoshino)

Jack Beatty, On Point news analyst. (@JackBeattyNPR)

Kathryn Tucker, special counsel at Emerge Law Group. She argued the cause of the respondents in the 1997 Washington v. Glucksberg case.

Los Angeles Times: "Op-Ed: A retro reading of the Constitution imperils many rights beyond abortion" "As astute commentators have noted, the draft opinion in Dobbs vs. Jackson Womens Health Organization not only seeks to overrule Roe vs. Wade, but might also someday threaten other decisions like Obergefell vs. Hodges, which secured the right to same-sex marriage."

On unenumerated rights

Kenji Yoshino:It's the air we breathe. And if I can even go further than that, it's really the foundation on which the Constitution has been built because ... at the very founding of the Constitution ... the condition that certain individuals who ratified the Constitution called the anti-federalists, who are worried about overweening federal governmental power, reserved was to say, "We will only vote for this if you enact a Bill of Rights."

One of those Bill of Rights is the Ninth Amendment, and the Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And so, what I love about that is that there's a textual reference in the Constitution to the idea that there are textually unenumerated right. So there's a little bit of a paradox.

On the process by which unenumerated rights are retained by the Court

Yoshino:There are two tests for how to decide what is an unenumerated right. ... The test that conservatives have loved and that Justice [Samuel] Alito is trying to resurrect is a 1997 test that comes from the case, Washington v. Glucksberg. And in Glucksberg, the Court said, when you're trying to ascertain whether something is an unenumerated right, history is going to be your guide. And so the formal test is to question whether or not the right that people are proposing is, "deeply rooted in this nation's history and traditions and implicit and the concept of order liberty." So if you think about that, that is going to be a very backwards looking test.

And the alternative test, which was proposed by Justice [John Marshall] Harlan initially in his dissent in a case called Poe v. Ullman, which actually predated Washington v. Glucksberg, but was a dissent, but was later embraced by the Casey majority in 1992 is this test that says there can't really be any formula. We, of course, look to history as our guide, but we look not only at the traditions that we have as a country, but also the traditions from which we broke. And Harlan says that tradition is a living thing.

On the connection between "history and tradition" and the politics of the moment

Yoshino:I agree that thinking of Dobbs as adopting a very cramped reading of Glucksberg is a really good characterization. ... This is actually Justice Alito's version of history and obviously the people who signed on to that opinion and his version of history is very narrow indeed. So what he's saying is the test here is whether or not the unenumerated right is deeply rooted in this nation's history and traditions. And then he says, abortion is clearly not that. And so QED, abortion is not a fundamental right.

But as Jack was saying earlier, the right to abortion has been around since 1973. As you said earlier, abortions themselves have been conducted since time immemorial. And so he's selecting a very particular version of when history begins and what constitutes that history in order to come to the result that he comes to.

On the 1965 Griswold v. Connecticut case's precedent on discerning unenumerated rights

Yoshino: [The Griswold case]says the penumbras around the First, Third, Fourth and Fifth Amendment create a right to privacy. So what they're getting at a penumbra is just a shadow, right? is that these textual provisions cast these shadows. And those shadows, which all contain this notion of privacy overlap with each other such that they coalesce into a right in its own right, so that the right to privacy under which the right to contraception is protected is derived from the shadows of actual textual provisions. So text is being used as a counterweight to the lack of history right on point here.

On potential concerns about the future of unenumerated rights

Yoshino: I'm extremely concerned about them. I think time will tell, and only time will tell. But we have a test being articulated by the draft of the opinion that, if applied rigorously, would mean the demise of many of the unenumerated rights that we have come to take for granted. So I'm extremely concerned. I'm about to head into teach my new constitutional law class, and I feel like I'm teaching that generation that's going to have to fix this because I'm not relying on my generation to be able to do it.

View original post here:
The fragility of unenumerated rights | On Point - WBUR News

Former President Donald Trump speaks at a rally at the Delaware County Fairgrounds, on April 23 in Delaware, Ohio. A New York state appeals court ruled Thursday that Trump must answer questions under oath in a civil investigation into his business practices. Joe Maiorana/AP hide caption

Former President Donald Trump speaks at a rally at the Delaware County Fairgrounds, on April 23 in Delaware, Ohio. A New York state appeals court ruled Thursday that Trump must answer questions under oath in a civil investigation into his business practices.

NEW YORK Former President Donald Trump must answer questions under oath in New York state's civil investigation into his business practices, a state appeals court ruled Thursday.

A four-judge panel in the appellate division of the state's trial court upheld Manhattan Judge Arthur Engoron's Feb. 17 ruling enforcing subpoenas for Trump and his two eldest children to give deposition testimony in Attorney General Letitia James' probe.

Trump had appealed, seeking to overturn the ruling. His lawyers argued that ordering the Trumps to testify violated their constitutional rights because their answers could be used in a parallel criminal investigation.

"The existence of a criminal investigation does not preclude civil discovery of related facts, at which a party may exercise the privilege against self-incrimination," the four-judge panel wrote, citing the Fifth Amendment right against self-incrimination.

Message seeking comment were left with lawyers for the Trumps and with James' office. The Trumps could still appeal the ruling to the state's highest court, the Court of Appeals.

James, a Democrat, has said her investigation has uncovered evidence Trump's company, the Trump Organization, used "fraudulent or misleading" valuations of assets like golf courses and skyscrapers to get loans and tax benefits.

Thursday's ruling could mean a tough decision for Trump about whether to answer questions, or stay silent, citing his Fifth Amendment right against self-incrimination. Anything Trump says in a civil deposition could be used against him in the criminal probe being overseen by the Manhattan district attorney's office.

At a hearing prior to Engoron's Feb. 17 ruling, Trump's lawyers argued that having him sit for a civil deposition is an improper attempt to get around a state law barring prosecutors from calling someone to testify before a criminal grand jury without giving them immunity.

A lawyer for the attorney general's office told Engoron that it wasn't unusual to have civil and criminal investigations proceeding at the same time, and Engoron rejected a request from lawyers for the Trumps to pause the civil probe until the criminal matter is over.

Last summer, spurred by evidence uncovered in James' civil investigation, the Manhattan district attorney's office charged the Trump Organization and its longtime finance chief, Allen Weisselberg, with tax fraud, alleging he collected more than $1.7 million in off-the-books compensation. Weisselberg and the company have pleaded not guilty.

See the article here:
Trump loses an appeal and must testify in New York's civil investigation - NPR

Activists rally outside of the U.S. Supreme Court on May 2, 2022, after an initial draft majority opinion indicated that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned, which would end federal protection of abortion rights across the country. (Kevin Dietsch / Getty Images)

The U.S. Constitution is a sparse 4,400 words. This parsimonious use of language has provided full employment for generations of American lawyers who can argue what gaps in the document mean. The terse Constitution has also allowed generations of justices on the Supreme Court to act as gap-fillers through the adjudication of cases and controversies. One of the words that does not show up among the Constitutions 4,400 words: privacy.

The Supreme Court has filled that gap by inferring that people in America (not just citizens) have a constitutional right to privacy.There are a few places in the Constitutional text that the justices have located the right to privacy.

The most satisfying is in the Ninth Amendment, part of the Bill of Rights, which says, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. In other words, the Ninth Amendment says just because a particular right is not mentioned in the text of the Constitution does not mean that people in America do not have it. Thus the Ninth Amendment is a catch-all protection for rights that are not specifically listed.Historically, the Supreme Court has been extremely hesitant to find new rights in the Ninth Amendment because this opens the justices to the criticism that they are just making up rights to suit their own prejudices or whims. (For a good layperson explanation of the Ninth Amendment, check out the play What the Constitution Means to Me on Amazon Prime.)

A second source of the right to privacy that justices have relied on for decades are the two due process clauses found in the Fifth Amendment and 14th Amendment. (The Fifth Amendment applies to the federal government, and the 14th applies to the 50 states.) The Supreme Court has used the due process clauses to articulate the protection of fundamental rights including the right to privacy. The 14th Amendments due process clause states: nor shall any State deprive any person of life, liberty, or property, without due process of law This word liberty is the textual peg the Supreme Court has used to find the right to contract, the right to marry, the right to intimate relationships, the right to use contraception and the right to abortion. When the Supreme Court rules a right is fundamental using a due process clause, this is known as substantive due processand reproductive freedoms have long been covered as substantive due process rights.

And a final source of the right to privacy is the shadow of the Bill of Rights.In a case called Griswold v. Connecticut from 1965, the Supreme Court was considering the constitutionality of a Connecticut law that made use of contraceptives by married couples a crime. Justice Douglas wrote in Griswold that privacy could be found in the emanations and penumbra of the Bill of Rights.

A penumbra is a term from astronomy that refers to the shadow cast by a planet from a light source like the sun. Here the light source was the Bill of Rights, and the shadow (or penumbra) created a zone of privacy.Using this metaphor, Douglas concluded that marital privacy included the right to use contraception. Other justices in Griswold located the right to privacy in either the Ninth Amendment or the 14th Amendment.But the upshot was clear: After Griswold, married women had the right to use the pill and other contraceptives like diaphragms. The Supreme Court would later expand access to single persons as well in Eisenstadt v. Baird.

When the Supreme Court rules a right is fundamental using a due process clause, this is known as substantive due processand reproductive freedoms have long been covered as substantive due process rights.

The language used by the Supreme Court in Roe v. Wade in 1973 is:

This right of privacy, whether it be founded in the Fourteenth Amendments concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendments reservation of rights to the people, is broad enough to encompass a womans decision whether or not to terminate her pregnancy.

Thus, in Roe v. Wade, the Supreme Court expanded on the right of privacy articulated in Griswold and said the right also included the decision of whether to have an abortion. (A good overview of how substantive due process has impacted womens privacy rights in particular is the Netflix special, Amend: The Fight for America, episode 4.)

Substantive due process has also been used to protect the right to marriage and sexual intimacy. In Loving v. Virginia in 1967, the Supreme Court invalidated an anti-miscegenation law. The Supreme Court wrote in Loving:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

(Vice celebrated the 50th anniversary of Loving by talking to interracial couples today.)

And in Lawrence v. Texas in 2003, the Supreme Court invalidated a state law that criminalized sodomy. In Lawrence the Court also relied on substantive due process and the right to privacy declaring, The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. Casey at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

(For more on this case, see Lamda Legals Overruled!)

Thus, the problem with Justice Alitos approach to privacy in his leaked opinion overruling Roe v. Wade is that stomping on the right to privacy wont just impact abortion rights. It could have long reaching impacts on keeping the government outside of heretofore private spheres like marriage, sex and our bodies.

Sign and share Ms.s relaunched We Have Had Abortions petitionwhether you yourself have had an abortion, or simply stand in solidarity with those who haveto let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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Where Is Privacy in the US Constitution? The Wide-Ranging Ramifications of a Roe Overturn - Ms. Magazine