NationStates Jolt Archive

Ninja Zombie Dinosaurs and I have gotten into a discussion of the Supreme Court decisions regarding abortion that I will first recreate (parts 1-9, starting with part 1 quoted here) and then continue.

I apologize for the 9 posts of old stuff, but I think it provides context. Please feel free to jump in at any point!!

Even if you use both, (Pill + Condom) = something like a 1% failure rate.

My personal opinion on the abortion issue is that people seem much more interested in punishing single pregnant women for having sex than they are in actually protecting children. Where is this galvanizing firestorm of nationwide political energy when it comes to, say, feeding starving children in foreign countries? Or treating poor children dying needlessly of preventable diseases? Or, especially relevant in this case, finding homes for unwanted orphans? When was the last time a presidential candidate took a strong stance on international enforcement of child labor laws? Not sexy enough, yeh? :headbang:

I say hand the decision on abortion down to state legislatures where it obviously belongs and be done with it. Some states will allow it, and others will outlaw it, and most of us can pretty much sketch out the map on that.

part 2
Originally Posted by Ninja Zombie Dinosaurs
snip
I say hand the decision on abortion down to state legislatures where it obviously belongs and be done with it. Some states will allow it, and others will outlaw it, and most of us can pretty much sketch out the map on that.

I agree with much of what you said, but -- sorry -- Constitutional rights (especially fundamental human rights) cannot and should not be left to state legislatures. That is the whole point of constitutional rights.

pt. 3

What constitutional right, exactly? The constitution doesn't deal with this at all, and it doesn't do so as a matter of design. The Constitution describes the outlines of the federal government and the limits of the exercise of federal power on the people of the nation. It expressly does not address crimes like murder. Murder, manslaughter, vehicular homicide, the taking of lives in general... those are *state* crimes, and what does or does not constitute such is a matter for state legislatures.

IMO, trying to make the Constitution describe a stance on abortion is like trying to talk about car stereos in Latin. You can make it work, but only if everyone agrees on a fudge factor in advance. :D

pt. 4

Funny, but you are all wrong. I'm not going to explain this all to you from scratch, but I'll give a basic civics lesson.

The Bill of Rights, as incorporated (http://www.answers.com/topic/incorporation-bill-of-rights) through the Fourteenth Amendment, limits the powers of state and local governments, as well as the federal government.

The right to privacy is a fundamental human right and the Supreme Court has correctly recognized that the right to choose is protected by the Constitution. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (http://laws.findlaw.com/us/505/833.html ); Roe v. Wade, 410 U.S. 113 (1973) (http://laws.findlaw.com/us/410/113.html )

Murder, manslaughter, etc., are also federal crimes (http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/51/toc.html).

pt. 5

Yes, thank you, I think I've heard of Roe versus Wade now and again. :rolleyes:

I have a number of lawyers in my family, pro-choice and pro-life, and I have yet to meet one who thought shoehorning this issue under the equal protection clause made any constitutional sense. The 14th Amendment limits powers in certain respects, sure, but it doesn't remove the 10th Amendment in the process of so doing.

And, yes, murder can be a federal crime, but it's not primarily so. There has to be some sort of specifically overriding criterion involved to make it a federal matter. For the most part, one person killing another is a state issue.

OK. I've having fun with this particular debate. It's nice to latch on to someone you can learn from. :D Must... keep... up... :eek:

As a 'strict constructionist' interpreter of the Constitution, indeed NOWHERE in it does the Constitution protect abortion - some may argue that the 9th Amendment does ('gov't doesn't deny individuals the rights not in the Constituion), but as a 'strict constructionist' I'm not one for passing legislation that protects every single little miniscule right.

Yes, it would best be left up to the states

pt. 6

Perhaps you should read Roe and the more recent reaffirmation of reproductive rights in Planned Parenthood v. Casey -- rather than just assume they do not make sense. :rolleyes: You'll be suprised. Supreme Court Justices tend to be literate, as capable as you of reading the Constitution, and able to explain their decisions rather well.

Perhaps some of the lawyers in your family should know that incorporation is based on the Due Process Clause of the 14th Amendment. :rolleyes:

The Tenth Amendment has little practical meaning. More importantly, it does not authorize the states to deny any rights of the people -- such as free speech, privacy, due process, or reproductive rights.

I'll let the Supreme Court do a little explaining for me:

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

... It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94 -99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684 -686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481 -482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id. at 502-507, (WHITE, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399 -403 (1923).

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).

Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221 -222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).

...

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life


--Planned Parenthood v. Casey, 505 U.S. 833 (1992) (http://laws.findlaw.com/us/505/833.html)

I apologize to all for the legal arguments. If you wish to debate the validity of the Roe caselaw, Ninja Zombie Dinosaurs, I would be glad to do so separately. For now, please accept that there is more to constitutional law than you may know. And "states rights" is no solution to the abortion question.

pt. 7

Who was assuming? I have my own opinions on the subject, and the Supreme Court has theirs. Just because I disagree with them doesn't mean I don't know what they are.

The Tenth Amendment has little practical meaning. More importantly, it does not authorize the states to deny any rights of the people -- such as free speech, privacy, due process, or reproductive rights.

Free speech and due process are explicitly dealt with in the Constitution, so of course the Tenth Amendment doesn't give states the right to override them. The right to privacy, though, is unfortunately largely a legal fiction, outside of the provisions against search and seizure and the like. It should be in there - I likes my privacy, y'know. Unfortunately, it's not. It's been backhanded in through legal decisions... but it's not an explicit Constitutional right, as much as it should be.

Reproductive “rights” simply aren't spelled out anywhere in the Constitution at all, tortured interpretation of the 14th Amendment or not, and that's precisely the sort of situation the 10th Amendment was designed to handle in its impractical meaning, to be left to state legislatures and state constitutions.

This bit of the opinion in particular… hold up…

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

Firstly, the controlling word in this opinion is said to be “liberty”… but if you made the controlling word in this opinion “life”, would you come up with a wholly different opinion? If the overtone of this decision were that the 14th Amendment demands that no life be taken without due process of law, could you possibly come out with the same result? The amendment was subjected to the same sort of selective quotation that so frequently afflicts Biblical passages to achieve desired ends. Secondly, if a state’s elected representatives undertake to amend the state constitution through its established procedures to ban the procedure of abortion, and reproductive rights are not a right explicitly granted by the Constitution of the United States, how can it be said that the liberty is being excised without due process of law?

In the following bit…

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

In this bit, the court actually admits that they are inventing rights as they go along! I’m pro-choice. You may not know it from this argument, but I am, in fact, pro-choice. I was, however, raised to throw up the BS flag whenever it arises, and it goes up right here. At this point, right here, they admit that they are just making it up as they go. Well, that’s fine… but anyone who is actually going to look me in the eye and tell me this isn’t talking about car stereos in Latin is going to have to have a damn good pitch when they do.

EDIT: Didn't notice your "in private" request until just now... Well, I've already posted this big damn thing, so I'll leave it up, but I guess that'll have to be it.

pt. 8


EDIT: Didn't notice your "in private" request until just now... Well, I've already posted this big damn thing, so I'll leave it up, but I guess that'll have to be it.

I have no problem discussing the Roe caselaw, but do not wish to annoy those who hate "legal" arguments. (Although I sympathize, I think it rather silly to wish to argue about the law but not deal with actual law.)

Who was assuming? I have my own opinions on the subject, and the Supreme Court has theirs. Just because I disagree with them doesn't mean I don't know what they are.

Given that you made (and continue to make) basic errors about what the Supreme Court has said, it appeared to me (and still appears to me) that you are not well informed about the relevant Supreme Court cases. You are perfectly welcome to disagree. I will defend your right to do so and applaud your efforts. But informed disagreement is different.

You avoided my question -- you still haven't actually read Roe (http://laws.findlaw.com/us/410/113.html) or Planned Parenthood (http://laws.findlaw.com/us/505/833.html), have you?

At a minimum, you might consider reading the quote I gave again for what it says, rather than what you can find to disagree with in it. (I'll point out some examples below.)

Free speech and due process are explicitly dealt with in the Constitution, so of course the Tenth Amendment doesn't give states the right to override them. The right to privacy, though, is unfortunately largely a legal fiction, outside of the provisions against search and seizure and the like. It should be in there - I likes my privacy, y'know. Unfortunately, it's not. It's been backhanded in through legal decisions... but it's not an explicit Constitutional right, as much as it should be.

It is interesting that you trumpet the Tenth Amendment, but ignore the Ninth Amendment:

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

The Ninth Amendment is one of the many reasons that the Supreme Court has held that the list of fundamental rights in the first 8 Amendments is not to be taken as exhaustive.

Furthermore, the Fourteenth Amendment was an amendment to the Constitution - it amended and changed the Constitution.

Without incorporation through the 14th, you have no protection under the Constitution against state infringement of free speech, free press, due process, etc. (Go back to my original post on this.)

Your insistence on "explicit" Constitutional rights is inconsistent with: (a) the original Bill of Rights (i.e., the 9th Amendment), (b) the intentions of the Founding Fathers (e.g., the motives behind the 9th Amendment), (c) the 14th Amendment, (d) the intentions of the drafters of the 14th Amendment, and (e) well over 100 years of Supreme Court decisions.

Here is yet another quote from the Supreme Court - this one written by Chief Justice Rhenquist and joined by Justices O'Connor, Scalia, Kennedy, and Thomas (emphasis added):

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them' ") (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 -302 (1993); Casey, 505 U.S., at 851 . In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S., at 278 -279.

-- Washington v. Glucksberg (http://laws.findlaw.com/us/000/96-110.html), 521 U.S.702 (1997).

Reproductive “rights” simply aren't spelled out anywhere in the Constitution at all, tortured interpretation of the 14th Amendment or not, and that's precisely the sort of situation the 10th Amendment was designed to handle in its impractical meaning, to be left to state legislatures and state constitutions.

OK, I've handled this largely above. A couple of key points that you ignore could use further explanation, however.

First, as illustrated at length in the quotes I gave from Planned Parenthood, the Supreme Court works on the basis of precedent or stare decisis. When an issue has previously been brought to the Court and decided, it generally will adhere to that previous ruling -- unless there is a compelling reason to overturn the prior decision. All those citations in the quotations I provided are prior cases regarding fundamental rights protected by the Due Process Clause of the 14th Amendment. This is why the Court said things like (emphasis added):

[F]or at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986).

As Justice Brandeis (joined by Justice Holmes) observed, ... it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion).

Second, here are just a few examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity


Do you really wish to insist that none of these are protected by the Constitution?

This bit of the opinion in particular… hold up…


Firstly, the controlling word in this opinion is said to be “liberty”… but if you made the controlling word in this opinion “life”, would you come up with a wholly different opinion? If the overtone of this decision were that the 14th Amendment demands that no life be taken without due process of law, could you possibly come out with the same result? The amendment was subjected to the same sort of selective quotation that so frequently afflicts Biblical passages to achieve desired ends.

If you had read Roe or knew what you were talking about, you would recognize that this argument has been raised and rejected.

The relevant clause of the 14th Amendment reads (emphasis added):
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Thus, one has to be a "person" to be entitled to protection against deprivations of life, liberty, or property. The Court in Roe specifically addressed and rejected the argument that, as "person" is used in the 14th Amendment, the fetus is a person. Among other things, the 14th Amendment implies - if not requires - the person be "born" and none of other provisions of the Constitution referring to persons make sense applied to the unborn.

Secondly, if a state’s elected representatives undertake to amend the state constitution through its established procedures to ban the procedure of abortion, and reproductive rights are not a right explicitly granted by the Constitution of the United States, how can it be said that the liberty is being excised without due process of law?

Again, you appear not be deliberately ignoring the content of what has been explained before. The Due Process Clause is not merely procedural, but places substantive limits on government. This has been the law of the land since at least 1887 -- just nine years after the 14th Amendment was passed!

In the following bit…

In this bit, the court actually admits that they are inventing rights as they go along! I’m pro-choice. You may not know it from this argument, but I am, in fact, pro-choice. I was, however, raised to throw up the BS flag whenever it arises, and it goes up right here. At this point, right here, they admit that they are just making it up as they go. Well, that’s fine… but anyone who is actually going to look me in the eye and tell me this isn’t talking about car stereos in Latin is going to have to have a damn good pitch when they do.

So, where the Court points out that there is another possible view of Constitutional rights but explains it has consistently rejected that view going back to cases decided right after the 14th Amendment was ratified, you read that as an admission by the Court that it is wrong. (You also ignore that the entire passage is an explanation of the Court's almost 120 years of caselaw rejecting your narrow view.) I suggest your reading of the quote in question is as skewed as your reading of the Constitution itself.

pt. 9

Firstly, I will admit that I have not read the full opinions of either case. Let’s get that out of the way. I haven't. I appreciate your having supplied material quotes and encourage to continue to educate me in this regard. :)

Next, I didn’t forget about the 9th Amendment. However, I was under the impression that the 9th Amendment was simply leaving room for additional rights to be made available under the auspices of other documents, such as state constitutions. That is to say, the amendments in the Constitution were not meant to be an exhaustive list, but that said additional rights would still be codified by a legislature someplace, as is their responsibility. New Jersey (http://www.njleg.state.nj.us/lawsconstitution/constitution.asp)’s constitution grants citizens the right to collective bargaining, for instance, even though the federal constitution lacks such a provision, and the 9th Amendment helps stave off problems with reconciliation, as does a similar clause in the NJ Constitution. Anyway, that’s what I meant by explicitness. Was I incorrect in that assumption?

On incorporation, I understand that, but I also understand that all state constitutions of which I am aware have within them protections that are very similar to those granted the Constitution. You can see them in the above link, and I saw very similar provisions in the state constitutions of Texas and Georgia a while back, too. Of course, that could be a recent phenomenon, as I’m not a historian of law, but the abortion decisions are also recent phenomena, heh…

Of the various rights that are not enumerated… At least one of them is spelled out. The right to vote might not be in the federal constitution, but it is laid out for me personally in the New Jersey Constitution, and from there it gets to play with the 14th and 19th Amendments. It is a clearly codified right passed by accountable representatives.

Next up: I understand the concept of legal precedent, but, as one person put it, “All that means is that bad decisions can get compounded.” I understand it is a key bit of the legal system because it helps keep legal decisions coherent, but that doesn’t mean it always produces good results, just consistent ones. Maybe it’s just me.

As to “If you had read Roe or knew what you were talking about, you would recognize that this argument has been raised and rejected” and “The Court in Roe specifically addressed and rejected the argument that…” I am not of the opinion that simply because a court opted to reject an argument, everyone should. Judges are just people, fallible, biased people like the rest of us, y'know? They're trained specialists, but they're human. Their decisions may be binding, but they don’t get to speak ex cathedra. :D

As a 'strict constructionist' interpreter of the Constitution, indeed NOWHERE in it does the Constitution protect abortion - some may argue that the 9th Amendment does ('gov't doesn't deny individuals the rights not in the Constituion), but as a 'strict constructionist' I'm not one for passing legislation that protects every single little miniscule right.

Yes, it would best be left up to the states

As a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?

the right to travel within the United States
the right to custody of one's children
the right to choose and follow a profession

Do you really wish to insist that none of these are protected by the Constitution?
Devil's Advocate attack! :eek:

The right to travel within the United States
Not all places are open to free travel. Many public facilities are, in fact, closed to the general public. Federal facilities are often restricted access. Military installations. Airports. Areas can be closed off at need, too, like crime scenes. I'm not arguing that we have and we prize very free travel compared to many countries... North Korean food dispenseries won't even feed someone with improper travel documents. I'm just asking if it's really a right, or just customary.

The right to custody of one's children
Parents lose custody of their children daily in the US, for the protection of the child (right or wrong), during divorce proceedings, or in messy deportations. Again, we prize it fairly highly... but is it a right?

The right to choose and follow a profession
Except if drafted. :D

Firstly, I will admit that I have not read the full opinions of either case. Let’s get that out of the way. I haven't. I appreciate your having supplied material quotes and encourage to continue to educate me in this regard. :)

Thank you. I enjoy our exchange. I will also try to let my vigorous opinions not be so condescending.

Next, I didn’t forget about the 9th Amendment. However, I was under the impression that the 9th Amendment was simply leaving room for additional rights to be made available under the auspices of other documents, such as state constitutions. That is to say, the amendments in the Constitution were not meant to be an exhaustive list, but that said additional rights would still be codified by a legislature someplace, as is their responsibility. New Jersey (http://www.njleg.state.nj.us/lawsconstitution/constitution.asp)’s constitution grants citizens the right to collective bargaining, for instance, even though the federal constitution lacks such a provision, and the 9th Amendment helps stave off problems with reconciliation, as does a similar clause in the NJ Constitution. Anyway, that’s what I meant by explicitness. Was I incorrect in that assumption?

Yes. State constitutions have nothing to do with this. States were not bound by the original Bill of Rights. Pursuant to incorporation under the 14th Amendment, states may provide greater protection than that afforded by the US Constitution, but they may not provide less. The US Constitution always trumps, so there is no issue of reconciliation.

I must admit the 9th Amendment is of little more practicality than the 10th Amendment. It does, however, expressly reject the "only enumerated rights count" view.

On incorporation, I understand that, but I also understand that all state constitutions of which I am aware have within them protections that are very similar to those granted the Constitution. You can see them in the above link, and I saw very similar provisions in the state constitutions of Texas and Georgia a while back, too. Of course, that could be a recent phenomenon, as I’m not a historian of law, but the abortion decisions are also recent phenomena, heh…

You don't quite get it. That is understandable. Incorporation is a strange idea to most everyone -- particularly as most assume the Bill of Rights applied to the states to begin with.

Here are a handful of short, fairly simple explanations of incorporation:
http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29
http://www.answers.com/topic/incorporation-bill-of-rights
http://ap.grolier.com/article?assetid=0047310-00&templatename=/article/article.html

I have not read all 3 100% carefully, but they should be generally accurate on this subject.

Incorporation is the application of provisions of the Bill of Rights as limitations to the states through the Due Process Clause of the 14th Amendment. The BoR was originally only a limitation on the federal government. After passage of the 14th amendment, the Supreme Court has held that provisions of the BoR are fundamental to liberty and may not be infringed by the states.

What a state may or may protect in its individual constitution has nothing to do with incorporation or with the extent of protections provided by the US Constitution. A state may provide more protection than the US Constitution, but must not infringe federal constitutional rights. Its a floor, not a ceiling.

Of the various rights that are not enumerated… At least one of them is spelled out. The right to vote might not be in the federal constitution, but it is laid out for me personally in the New Jersey Constitution, and from there it gets to play with the 14th and 19th Amendments. It is a clearly codified right passed by accountable representatives.

It is great that New Jersey guarantees your right to vote. That has nothing to do with the 15th or 19th Amendments -- except that, to the extent NJ grants a right to vote it must do so without regard to race or sex. The 14th Amendment has been held to independently guarantee you the right to vote and to have your vote counted equally.

Again, without the substantive view of the Due Process Clause, you have no federal constitutional right to vote -- or any of the other rights I listed.

Next up: I understand the concept of legal precedent, but, as one person put it, “All that means is that bad decisions can get compounded.” I understand it is a key bit of the legal system because it helps keep legal decisions coherent, but that doesn’t mean it always produces good results, just consistent ones. Maybe it’s just me.

Agreed. And the Court can, and does, reverse prior decisions that it decides were wrong. However, when you are looking at 120 years of legal precedent -- extending from the passage of the 14th Amendment to the present -- you aren't just looking at a single decision or even a dozen decisions, but rather dozens of decisions.

If you want to say that those 120 years of decisions are all wrong, I say you have a substantial burden against you. Moreover, you had better be prepared to argue against the rationales of those decisions -- rather than act as if you are writing from a clean slate.

As to “If you had read Roe or knew what you were talking about, you would recognize that this argument has been raised and rejected” and “The Court in Roe specifically addressed and rejected the argument that…” I am not of the opinion that simply because a court opted to reject an argument, everyone should. Judges are just people, fallible, biased people like the rest of us, y'know? They're trained specialists, but they're human. Their decisions may be binding, but they don’t get to speak ex cathedra. :D

Ok ... My point was (1) your argument was wrong and (2) the Court had explained why it was wrong.

Granted, judges may be wrong. There are lots of Supreme Court decisions I disagree with.

But, judge are, as you admit, trained specialists. Supreme Court Justices are generally the cream of the crop of judges. They make decisions via a majority of the 9 of them. They write lengthy opinions explaining their decisions. Before you say one of the Court's decisions is wrong, reading the opinion is a good idea.

And, if you are going to tell me that not just one majority of the Court but dozens of majorities over the years (i.e. dozens of Justices) have consistently been wrong on a certain point, you are going "to have to have a damn good pitch when [you] do." :p

Devil's Advocate attack! :eek:

The right to travel within the United States
Not all places are open to free travel. Many public facilities are, in fact, closed to the general public. Federal facilities are often restricted access. Military installations. Airports. Areas can be closed off at need, too, like crime scenes. I'm not arguing that we have and we prize very free travel compared to many countries... North Korean food dispenseries won't even feed someone with improper travel documents. I'm just asking if it's really a right, or just customary.

The right to custody of one's children
Parents lose custody of their children daily in the US, for the protection of the child (right or wrong), during divorce proceedings, or in messy deportations. Again, we prize it fairly highly... but is it a right?

The right to choose and follow a profession
Except if drafted. :D

The problem with all of your points is that none of those rights is absolute. (Nor is the right to abortion). Yes, there are limitations. Just as there are limitations on freedom of speech, etc.

Custody battles during divorce are, of course, a battle between the rights of the parents. Do you seriously contend that parents have no right to custody? Could New Jersey pass a law tomorrow taking all children to live in state orphanages and be raised by the state?

Similarly, may New Jersey ban travel in or out of the state?

Again, without the substantive view of the Due Process Clause, you have no federal constitutional right to vote
I thought that was a matter of design, originally, at least, along with several of the other things we'd mentioned. Voting was left up to the states, and essentially still was even after the federal amendments that impacted how they would do it.

I was interested to notice earlier today that neither an idiot nor the insane can vote in New Jersey. I wonder how they work that out in practice. ESPECIALLY in New Jersey. :rolleyes:

Incorporation is the application of provisions of the Bill of Rights as limitations to the states through the Due Process Clause of the 14th Amendment. The BoR was originally only a limitation on the federal government. After passage of the 14th amendment, the Supreme Court has held that provisions of the BoR are fundamental to liberty and may not be infringed by the states.
I think this is something I need to be clear on, here. Without the 14th Amendment, would, say, the Fifth Amendment not be applicable to a state? I thought the only Bill of Rights amendment that involved the phrase "Congress will make no law" was the 1st. The rest seem to be phrased in terms of absolutes.

Custody battles during divorce are, of course, a battle between the rights of the parents. Do you seriously contend that parents have no right to custody? Could New Jersey pass a law tomorrow taking all children to live in state orphanages and be raised by the state?
I think, whether it's a right or not, that one falls into the "let's just see you try it" category. Let's try a different version, although this might fall afoul of the 14th. Do you think that, say, Ohio could pass a bill mandating that homosexual parents automatically forfeit custody of their children as a follow-up to Issue 1?

Similarly, may New Jersey ban travel in or out of the state?
Under emergency conditions, sure. Under regular conditions, I think this would again fall into the "let's just see you try it". But do I think they could establish, say, curfew hours? I'd bet yes.

I thought that was a matter of design, originally, at least, along with several of the other things we'd mentioned. Voting was left up to the states, and essentially still was even after the federal amendments that impacted how they would do it.

This begs the question -- i.e., whether it "was a matter of design" that (a) some things were left to the states are were not federal rights or (b) some federal rights exist that are not enumerated. Moreover, the 14th Amendment altered the "original" design -- whatever that may have been.

I was interested to notice earlier today that neither an idiot nor the insane can vote in New Jersey. I wonder how they work that out in practice. ESPECIALLY in New Jersey. :rolleyes:

As someone living in California under Governor Ah-nold, I am especially concerned that idiots and the insane are voting. ;)

I think this is something I need to be clear on, here. Without the 14th Amendment, would, say, the Fifth Amendment not be applicable to a state? I thought the only Bill of Rights amendment that involved the phrase "Congress will make no law" was the 1st. The rest seem to be phrased in terms of absolutes.

You are starting to get it. (Again, no sarcasm intended. This is a topic of many days, if not weeks, in law school.) Yes -- without the 14th Amendment, the 5th Amendment is not applicable to a state.

It is true that "Congress" language makes this even more difficult to understand. What you have to understand, however, is that the Constitution originally dealt only with the powers (or lack thereof) of the federal government.

In fact, our question was directly answered by the Supreme Court in 1833. In Barron v. Baltimore (http://laws.findlaw.com/us/32/243.html ), 32 U.S. 243 (1833), Chief Justice John Marshall confirmed that the Fifth Amendment (and the rest of the Bill of Rights) did not apply to the states. Barron had sued the city for damage to a wharf, resting his claim on the Fifth Amendment's requirement that private property not be taken for public use "without just compensation." Marshall ruled that the Fifth Amendment was intended "solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states."

I think, whether it's a right or not, that one falls into the "let's just see you try it" category. Let's try a different version, although this might fall afoul of the 14th. Do you think that, say, Ohio could pass a bill mandating that homosexual parents automatically forfeit custody of their children as a follow-up to Issue 1?


Under emergency conditions, sure. Under regular conditions, I think this would again fall into the "let's just see you try it". But do I think they could establish, say, curfew hours? I'd bet yes.

I'm not sure what you mean by "let's just see you try it." Are you just implying mob rule would prevent it?

My question is different. Is there any legal right to raise one's children? Yes, according to the Supreme Court, under the 14th Amendment. But if you want to take the position that only "express rights" count, no.

Same with the presumption of innocence and the other rights I listed.

You may have no problem with marriage, conception, child raising, education, travel, bodily integrity, etc, being left entirely to the whim of the state. I, however, am happy to have the 14th Amendment as a protection of my liberties.

Note: each of those rights I listed had been denied by one or more states -- which is why there are one or more cases holding that each right is protected by the 14th Amendment.

It is true that "Congress" language makes this even more difficult to understand. What you have to understand, however, is that the Constitution originally dealt only with the powers (or lack thereof) of the federal government.

In fact, our question was directly answered by the Supreme Court in 1833. In Barron v. Baltimore (http://laws.findlaw.com/us/32/243.html ), 32 U.S. 243 (1833), Chief Justice John Marshall confirmed that the Fifth Amendment (and the rest of the Bill of Rights) did not apply to the states. Barron had sued the city for damage to a wharf, resting his claim on the Fifth Amendment's requirement that private property not be taken for public use "without just compensation." Marshall ruled that the Fifth Amendment was intended "solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states."
I was not so aware. Huh. That explains the mirrored language in state constitutions. I always thought that was a bit redundant. Now I understand, though, that they were just following the Constitution's lead by implementing similar provisions on a state scale where they would not otherwise have been, with, I'm sure, differences in the wording.

I'm not sure what you mean by "let's just see you try it." Are you just implying mob rule would prevent it?
More or less.

You may have no problem with marriage, conception, child raising, education, travel, bodily integrity, etc, being left entirely to the whim of the state. I, however, am happy to have the 14th Amendment as a protection of my liberties.
On the contrary. I have always been worried precisely because they aren't written into anything. As a matter of fact, I have always felt that the reason the pro-choice/pro-life debate flares up like it does is the very precariousness of the decision. Instead of requiring two thirds of the Congress and 3/4 of the states to fiddle with it, it only requires a couple of pointed judicial appointees squeaking through Advise & Consent, even wedged into two hundred years' worth of the body of law with the 14th Amendment to stand on.

I'd feel better with everything cleanly spelled out. :D

Let me just say that I am EXTREMELY GLAD to see two people of opposing viewpoints DISCUSSING, and not ARGUING. It's nice to know that civilized discourse still exists...

Whether or not abortion is protected by the U.S. Constituion (seeing as this is still up in the air, and a matter of interpretation), I do not think that it should be strictly left up to the states. This could spell out quite a border problem.

Lemme give you a for instance: If it is left up to the states, and say, Georgia outlaws it, but Alabama doesn't. It is not safe to get an illegal abortion (Never has, those who survived those before are LUCKY), so hundreds of women start crossing the border to get one in Alabama, not to mention many people would move due to belief systems (Feminism, Rights activists, etc. It's happening already in states that restrict the rights of Homosexuals). Georgia loses part of it's viable population.

Now lets say that there is a rise in back-alley abortions again. For whatever reason, whether it be for money or time constraints, a woman cannot make it across the state lines to get a safe, legal abortion in Alabama. So she sees John Doe in Apartment A. He puts her on the kitchen table, puts a catheter in her cervix, and promptly preforates her uterus. She dies from internal bleeding. Now, magnify that death by the deaths of other women who die from bleeding and septic abortions. You begin to have an epidemic on your hand (like there was before 1973). Does Alabama sit idly by while Georgia women are dying? It was different before 1973, because abortion was illegal across the board, but now you have individual states that have women dying from botched abortions. Does this count as a human rights violation? Can Alabama petition the U.S. Government?

I don't think that it should be left to the states when adult, fully functioning, independant life is in the balance.

Let me just say that I am EXTREMELY GLAD to see two people of opposing viewpoints DISCUSSING, and not ARGUING. It's nice to know that civilized discourse still exists...

Whether or not abortion is protected by the U.S. Constituion (seeing as this is still up in the air, and a matter of interpretation), I do not think that it should be strictly left up to the states. This could spell out quite a border problem.

[snip]

I don't think that it should be left to the states when adult, fully functioning, independant life is in the balance.

Thank you. Thank you very much. :D

I don't agree that whether abortion is protected by the U.S. Constitution is up in the air (as SCOTUS re-affirmed Roe v. Wade (1973) in Planned Parenthood v. Casey (1992).

Nonetheless, I agree with your cogent analysis of additional reasons why abortion should not be left to the states.

Cat-Tribe,

I have to say, that I have disagreed with the Supreme Court when I felt that there decision isn't covered under the XIV Amendment. There is no Checks on the Supreme Court. This needs to be addressed in my opinion.

As to abortion, it should be left to the states. There is NOTHING in the constitution regarding abortion being a right. Not even the XIV. The Federal Government, in my mind, as overstepped its bounds regarding it. They should turn it back over to the states as it was prior to Roe V Wade. BTW: Roe wants it overturned.

Cat-Tribe,

I have to say, that I have disagreed with the Supreme Court when I felt that there decision isn't covered under the XIV Amendment. There is no Checks on the Supreme Court. This needs to be addressed in my opinion.

As to abortion, it should be left to the states. There is NOTHING in the constitution regarding abortion being a right. Not even the XIV. The Federal Government, in my mind, as overstepped its bounds regarding it. They should turn it back over to the states as it was prior to Roe V Wade. BTW: Roe wants it overturned.

I respect your opinion.

There are checks on the Supreme Court. The composition of the Court changes over time and the later Court's may alter prior opinions. It is possible to pass Amendments, etc.

I would note, with all due respect, that I have discussed at length why the 14th Amendment protects fundamental liberties beyond those expressly stated in the Constitution. I understand you disagree, but you didn't respond to those points.

How do you deal with the 9th Amendment?

Do you reject the view (that predates Roe by almost 100 years) that the Due Process Clause of the 14th Amendment protects fundamental liberties beyond those enumerated?

So, do you think these are constitutional rights or matters left to the states:

1. the right to vote, subject only to reasonable restrictions to prevent fraud

2. the right to cast a ballot in equal weight to those of other citizens

3. the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime

4. the right to travel within the United States

5. the right to marry or not to marry

6. the right to make one's own choice about having children

7. the right to have children at all

8. the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)

9. the right to custody of one's children

10. the right to choose and follow a profession

11. right to bodily integrity

I respect your opinion. But, with all due respect, did you read the thread?

Yes I did and you made good points however, I'm a strict Constitutionalist.

There are checks on the Supreme Court. The composition of the Court changes over time and the later Court's may alter prior opinions. It is possible to pass Amendments, etc.

Possible yes. Likely? No. Your right that it changes overtime but it is very very slow changes.

How do you deal with the 9th Amendment?

I support it! Its part of the Constitution of the United States.

Do you reject the view (that predates Roe by almost 100 years) that the Due Process Clause of the 14th Amendment protects fundamental liberties beyond those enumerated?

Nope! But it shouldn't be used to create new rights.

So, do you think these are constitutional rights or matters left to the states:

1. the right to vote, subject only to reasonable restrictions to prevent fraud

Done by an act of Congress! I support it. It was under state Control at one point but the South failed to make sure that the black community was able to vote. Because of that, the Federal Government stepped in.

2. the right to cast a ballot in equal weight to those of other citizens

Again done by Congress. Again, I support it. *points back to point 1*

3. the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime

That is in the Constitution of the United States.

4. the right to travel within the United States

As far as I am concerned, we've always had this.

5. the right to marry or not to marry

Up to the 2 people involved if they want to marry or not.

6. the right to make one's own choice about having children

Left up to the citizens, not the state.

7. the right to have children at all

*points to point 6*

8. the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)

This should be done at the state level. I was homeschooled and PA was one of the first states to allow it. Education should be left up to the state and not to the Federal government.

9. the right to custody of one's children

CYS=Child and Youth Services! State Level.

10. the right to choose and follow a profession

What is this? A Totalitarian State? Always have had this decision. Goes back to the citizen and not the state or Federal Government.

11. right to bodily integrity

Doesn't this go back to local, county, state, and Federal laws?