Abortion was not illegal in the US when the constitution was written... not even until the AMA formed in 1847 and shortly thereafter started pushing for criminalization. The process was slow at first.
After the civil war many people became concerned that white women would get abortions and be outbred by the blacks. By 1910 it was illegal in every state.
I think it's interesting that this history has been forgotten.
My point is that it wouldn't even matter. The historical conditions no longer hold, ie., Would "illegal abortion" be a tyranny for women in 1800? Well, it's going to be very poorly enforced; you may die anyway; etc. It's a fairly marginal infringement of rights.
You're really not much more oppressed if you do/do-not have a right to abortion in 1800. You'll get one anyway, with just the same concequences.
But in today's world with basically risk-free abortions and massive systematic enforcement of the laws, etc., its easy to see that making abortion illegal creates an actual tyranny for women.
It is this which makes the originalist reading of the constitution absurd, immoral, and profoundly anti-originalist.
The issue with originalism is that it outright rejects the plain meaning of the constitution: it is a document which explicitly requires ignoring "what would the government of 1800 have done", indeed, ignoring what any government in history would have done
I'm not sure I fully understand or agree with your take on the 9th amendment as it relates to originalism. Many of the problems I see and both issues presented by the go present due to a moving target interpretation of the Constitution (Filburn and section 1 drugs).
Regarding abortion, the Commerce Clause should already protect the people from federal prohibition of abortion, as well as explicit federal prohibition on states prohibiting abortion. The transaction happens wholly with a state. 10A should apply here, imo. I don't see how 9A presents in such a way that it grants a right to abortion, but I do have trouble with the blanket extension of innumerated rights and their interaction with 10A.
It isnt just the 9th. It's throughout the constitution, and indeed why it's a philosophical document, not a legal one.
The people who wrote the constitution were not trying to enumerate a finite number of laws which were contemporary to their society such that the SC prevented that society from changing these laws. That's a radical misunderstanding, and the heart of "originalism" which explicitly misunderstands the original.
It's a little like "biblical literalists" misreading biblical stories and thinking that's their original interpretation -- when even, eg., Paul reads OT stories allegorically. In this sense the bible prescribes allegorical interpretation; in the similar way the constitution prescribes philosophical elaboration.
The purpose was to enumerate a series of principles to prevent tyranny, and have these require interpretation for any given society. Insofar as the SC asks, "what would the authors think about issue X", they're doing the opposite of what those authors wanted from the constitution.
They wrote a document which was at the time routinely violated by the laws and practices of their own society. The principles are supposed to drag the executive away from tyranny.
In this sense the police arresting a woman for having an abortion in contemporary society is precisely what those principles were designed to prevent -- and even if the people who wrote them would have not recognised it.
Their (historical) recognition of tyranny isnt the basis on which the constitution precludes tyranny -- that's the whole point of giving principles, not laws. If they thought they could always say what tryanny was, they'd list all the laws to prvent it.
After the civil war many people became concerned that white women would get abortions and be outbred by the blacks. By 1910 it was illegal in every state.
I think it's interesting that this history has been forgotten.