As always, you can find the Dobbs v. Jackson decision here.

Paragraph 6 of 9

Sentence 1 of 2

The first sentence of the next paragraph contains two claims:

“Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights, and it would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.”

Here are the two claims separated:

1. “Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights.”
2. “[I]t would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.”

The first claim is easily addressed Timbs is about the Eighth Amendment and McDonald is about the Second Amendment, and both of those rights are in the Bill of Rights. Simple.

“Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights.”

The second claim is a little slipperier.

“[I]t would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.”

First of all, this use of the word “anomalous” feels weird. It fits into Merriam-Webster’s 2 b definition, but definition 1 is more common, so my brain flagged it.

Also, as far as this sentence goes, this claim seems to regard what was done in Timbs and McDonald as a norm and anything that departs from that norm fails in an important way. In previous paragraphs a number of decisions have been mentioned that noted the importance of history and tradition, but this sentence seems to limit the required precedent to Timbs and McDonald. This is more of a language failure than a reasoning failure, but it reads strangely..

It is true that a right to abortion is not mentioned anywhere in the Constitution. We’ve covered that a couple of times. It’s number 2 on our list of claims established as true. We have seen several examples of the Court expressing the idea that history and tradition are important considerations. Since my examination of Dobbs is very shallow so far, and my examination of cited decisions and other materials is even shallower, I have yet to see a substantial argument that confirms the significance of history and tradition in considering Dobbs. I’ll need to do more digging before I can comfortably judge it one way or another, so I’m leaving the second claim undetermined.

That leaves us with one true claim:

• “Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights.”

and one undetermined claim:

• “[I]t would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.”