Posted on 08/05/2005 1:26:55 PM PDT by Know your rights
[...] Former Watergate prosecutor and Harvard law professor Archibald Cox once wrote, "Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice [Harry] Blackmun are part of the Constitution." The late Stanford law school dean John Hart Ely said the opinion "is not constitutional law and gives almost no sense of an obligation to try to be."
Harvard law professor Laurence Tribe, who argued Al Gore's post-election case before the U.S. Supreme Court in 2000, has said of Roe that "behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Even U.S. Supreme Court Justice Ruth Bader Ginsburg, appointed by President Bill Clinton, criticized Roe vs. Wade before joining the court. In 1985, she called it an act of "heavy-handed judicial intervention" that "ventured too far." [...]
(Excerpt) Read more at chicagotribune.com ...
I fail to see how the "right to privacy" protects a "right" to commit child abuse and murder. There are civil rights of a child at stake that are being violated. Privacy does not trump that.
The liberal Lunes that I argue with say that it's not a baby, until the moment it is born.
Sick bastards.
the decision of whether an unborn child is or is not a legal "person" under the 14th Amendment and entitled to the protection it asserts is a matter for either the Federal Legislature or for the Legislatures of the several States to decide - NOT five-of-nine unelected blackrobes to decide, irrespective of the "penumbra and emanation" business.
Do you all remember that there is a federal law on the books, I believe connected to the Endangered Species Act, that makes a federal criminal offense to destroy the eggs (read embryo) of the american bald eagle?
An eagle gets better protection from the federal government than unborn children!
Words have actual meanings and, if it's not a "baby" well, then, you're not "pregnant". But I don't even bother to argue with them. They're simply too dishonest and too stupid.
Roe v Wade is absolute crap because:
Now hold your breath on this one...
THE BILL OF RIGHTS DOES NOT APPLY TO THE STATES!
Ask yourself why the Bill of Rights was ultimately proposed and adopted. Anti-federalists feared that an omnipotent central government would detsroy the State governments and create centralized tyrannical government on its ruins.
The Preamble to the Bill of Rights states, "THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."
The first 8 Amendments are nothing but restrictive clauses on the Federal branch, they do not confer any grants of power to any Federal branch (including the Federal courts). Granting additional powers to the Fed would've defeated the purpose of adding a Bill of Rights. The 9th Amendment basically says, 'just because we've listed certain basic rights which the Fed cannot violate, doesn't mean that other are not also protected.' The 10th essentially means that the Constitution is one of strictly enumerated powers found in Article I Section VIII.
I disagree with John Marshall's "judicial review" philosophy, but he is dead on in his decision entitled "Barron v. City of Baltimore" from 1833. He clearly explains all the reasons why the Bill of Rights cannot be construed to apply against the State governments.
What about the "incorporation doctrine?" If anyone with a Brain can logically explain to me how the section of the 14th Amendment (which wasn't Constitutionally ratified) which states, "nor shall any State deprive any person of life, liberty, or property, without due process of law" "incorporates" the Bill of Rights to apply against the States, I'm all ears.
The sad fact is that "Roe v Wade" and this "incorporation doctrine" have no Constitutional basis, and are nothing more than unconstitutional misconstructions and usurpations against the rights of the people to self-government under the forgotten 10th Amendment.
The subject of abortion, like 99% of all domestic issues, belongs closer to the people... at the State and local levels, not at the Federal level or under the power of judges.
"But as Evelyn Waugh would say, the question is whether he [Blackmun] knows better now."
Incorporation doctrine is bogus, but was more or less necessitated by the Supreme Court's early 14th amendment ruling that "privileges or immunities of citizens of the United States", which the 14th amendment declared "No State shall make or enforce any law which shall abridge", do not include the immunities and privileges guaranteed by those first 9 amendments. This even though the sponsors of the bill which became the amendment, stated several times were exactly what was meant by "privileges and immunities of citizens of the United States".
That said, I do not see any right to privacy, in the sense of a right to break the law behind closed doors, nor a right to abortion, in the first 8 amendments. Nor in the 9th for that matter, as such rights were not known at the time and thus could not be "other rights retained by the people"
1833 is well before 1868 when the 14th Amendment was ratified. It's no longer good law.
Even before the 14th amendment, the Constitution guaranteed "A Republican Form of Government" to the states. Any government which violated such fundamental rights of the citizens as freedom of speech, the press, right to keep and bear arms, freedom from unreasonable searches and seizures and so forth, would hardly have been termed "Republican", by the founding fathers.
I don't see how the incorporation doctrine could be "necessitated" by the Slaughter House Cases dealing with "privileges or immunities." That wording was meant to counter the earlier Dred Scott decision which held that Blacks weren't citizens... and was that language was also intended to include Blacks under the existing "privileges or immunities" provision of the Constitution.
The original sponsor of the 14th Amendment (John Bingham of Ohio) hoped for incorporation of the Bill of Rights (Centralization of Power was what many Radical Republicans were trying to achieve in the 1860s), but it was commonly understood by almost everyone else in Congress that this was NOT their intent. Even the NARA (National Archives) website, under the 14th Amendment section, makes this point. So far as I know, only Bingham and Jacob Howard of Michigan, intended for the nationalization of the first 8 amendments.
Such a radical and monumental shift in power should be made perfectly clear to everyone, not cloaked in vague language like "privileges or immunities."
SOME OTHER QUESTIONS FOR YOU:
If the Bill of Rights was supposed to be incorporated, why include the due process clause under the 14th if the 14th incorporated the 5th Amendment? Where's the logic in that?
Also, explain the Blaine Amendments of 1875, which stated, "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations."
If the Bill of Rights was incorporated in 1868 by the 14th Amendment, then there would've been no reason for former speaker of the house James Blaine to propose this Amendment.
Use your brains guys, and gals, incorporation was the greatest act of fraud and deception in American history. Under the guise of protecting our rights, subjective as that may be, they've (the courts) have destroyed the fabric of Federalism.
I don't see how the incorporation doctrine could be "necessitated" by the Slaughter House Cases dealing with "privileges or immunities." That wording was meant to counter the earlier Dred Scott decision which held that Blacks weren't citizens... and was that language was also intended to include Blacks under the existing "privileges or immunities" provision of the Constitution.
The original sponsor of the 14th Amendment (John Bingham of Ohio) hoped for incorporation of the Bill of Rights (Centralization of Power was what many Radical Republicans were trying to achieve in the 1860s), but it was commonly understood by almost everyone else in Congress that this was NOT their intent. Even the NARA (National Archives) website, under the 14th Amendment section, makes this point. So far as I know, only Bingham and Jacob Howard of Michigan, intended for the nationalization of the first 8 amendments.
Such a radical and monumental shift in power should be made perfectly clear to everyone, not cloaked in vague language like "privileges or immunities."
SOME OTHER QUESTIONS FOR YOU:
If the Bill of Rights was supposed to be incorporated, why include the due process clause under the 14th if the 14th incorporated the 5th Amendment? Where's the logic in that?
Also, explain the Blaine Amendments of 1875, which stated, "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations."
If the Bill of Rights was incorporated in 1868 by the 14th Amendment, then there would've been no reason for former speaker of the house James Blaine to propose this Amendment.
Use your brains guys, and gals, incorporation was the greatest act of fraud and deception in American history. Under the guise of protecting our rights, subjective as that may be, they've (the courts) have destroyed the fabric of Federalism.
Barron v City of Baltimore would no longer be good law IF the Bill of Rights was altered, legitimately, by a legitimate (Constitutionally ratified) 14th amendment, which clearly was designed and expressly declared to incorporate the first 8 amendments.
Also, I mention Barron v City of Baltimore because so many morons today argue about what the "framers" meant, or what their intent was (in the Bill of Rights).
EXAMPLE: People argue over what the 2nd Amendment means. Does it mean the people? the militia? the States? ALL IT MEANS IS THAT THE RIGHT TO BEAR ARMS SHALL NOT BE INFRINGED (by the Federal government). That's all. The case is the same with all the other amendments... they're all superfluous and not necessary. A Case could be made that the United States only has a Federal Bill of Rights because of the words "General Welfare" and "Necessary and Proper" which many feared would lead to an arbitrary central government which would have no limits placed on its powers (much like the Washington DC of today).
Article XIV. Section 1. 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.
If you want to afford a fetus the right to life under this Amendment, you need to amend it to redefine citizens of the US. Such an amendment is needed to stop granting citizenship to every illegal alien's spawn anyway, so go for it.
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
person, as opposed to citizen.
It is this clause in this amendment which is used to extend protection under the law to foreigners (legal and otherwise). I find the inclusion of this vague term lamentable, a loophole in the law which must be dealt with.
However, at present: It exists, and the legal status of the fetus must be decided accordingly, by the legislature - Federal, of the States
And also, the "Republican Form of Government" was something that even guys like Jefferson and Adams were baffled by. I don't see how that expression can be construed as protecting "free speech" or "the right to bear arms" on the National level.
To prove my point I reference Thomas Jefferson's Kentucky Resolutions of 1798 (the 3rd Resolution). Jefferson, maybe the greatest proponent of free speech rights, makes it clear that people have the right to determine, on the local or state levels, how far speech rights may be abridged without lessening their useful freedoms. Enjoy Mr. Republican government.
"...it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals..." - Thomas Jefferson 1798
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