Constitutional right to privacy a figment of imagination

Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

[robertpaulsen]

"Who said anything about "distributing" it. I was talking only about what goes on in one's house."

Wink, wink, nudge, nudge.

[Mojave]

http://www.law.cornell.edu/supct/html/00-151.ZO.html

[robertpaulsen]

"They impose no duty or cost upon another to provide them for us"

Others don't "provide" us with rights. I think you mean "protect".

And you're wrong. It imposes a great duty and cost to society to protect your rights. The duties and costs of enforcement, conviction, and incarceration of those who violate your protected right, for one.

[robertpaulsen]

Nah. Cognitive dissonance. They'll just say the court was wrong.

[mo]

here is an interesting take ...."a rehearing, however the case is decided, could only be a setback for the left: Either Roe v. Wade is overturned, and the left is hoist on its own petard of creeping government intrusiveness, or Roe v. Wade is confirmed, and in fact is used as a precedent to strengthen the privacy right and thus provide a basis for overturning other statist regulatory infrastructure. I am rooting for the latter.".....http://www.coyoteblog.com/coyote_blog/2005/08/implications_of.html

[billbears]

Still posting from Constitution.org are you? Surely you can find multiple sites supporting your view can't you? Again I would suggest you look at the bio of the webmaster. Anything coming from his site is about as tainted as Ed Sebesta and the Temple of Democracy. Hey, you're not Whiskey Papa are you?

[don asmussen]

The framers of the 14th Amendment never intended for the Amendment to apply to the northern states, therefore they accepted the 14th would not incorporate the Bill of Rights nationwide.

Weird theory, throughly disputed by this article from Yale Law Review:

ON MISREADING JOHN BINGHAM
Address:http://www.constitution.org/lrev/aynes_14th.htm

Don't let facts get in your way, bill.

Still posting from Constitution.org are you? Surely you can find multiple sites supporting your view can't you?

Why should I bother when Tolands site gives access to multiple documents?

Again I would suggest you look at the bio of the webmaster. Anything coming from his site is about as tainted as Ed Sebesta and the Temple of Democracy.

Weird tar brush tactic you're using bill. There is nothing in Tolands background that invalidates Yale Law articles..

Hey, you're not Whiskey Papa are you?

Same sad tactic.. When you can't win your debate with logic, try to discredit your opponent. Is Whiskey Papa somehow discreditable?

[Conservative Goddess]

Well said Badray, Very well said indeed.

[don asmussen]

robertpaulsen opines:

A mere nine months after the 14th was ratified, the USSC ruled in Twitchell v. Pennsylvania that the Bill of Rights restricted only the federal government, not the states. Nobody mentioned the 14th Amendment.

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Careful. You'll upset the emanation of a penumbra fans.
219 Mojave

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Nah. Cognitive dissonance. They'll just say the court was wrong.
224 paulsen


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You two are so 'cute' when you can't argue the points directly..

See #83 for my rebuttal to the Twitchell opinion.

[Conservative Goddess]

The Federalists strongly opposed the specific enumeration of ANY rights, as they argued (correctly in my view) that the specific enumeration of any rights would provide men disposed to usurp a plausible pretense to argue that unenumerated rights were held not by the people, but by the feds. The Federalists went so far as to suggest that a specific enumeration of rights would even be DANGEROUS, given that an enumeration of rights was "entirely foreign to the nature of the thing." Meaning, a document that simply specifies the parameters within which the government can act, should not be charged with the absurdity of guarding against that which was never granted. How right they were.

Federalist No. 84 is directly on point: http://patriotpost.us/fedpapers/fed_84.html

The Anti-Federalists refused to ratify the proposed Constitution without a specific enumeration. Ultimately the Federalists, in exchange for the support of the Anti-Federalists, agreed to include a BOR at their earliest opportunity. The first proposal for a BOR came a year or two after the Constitution was ratified, and the letter in which the proposal was made, included this:

"...It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation...."

The full letter, including the initial proposal for the BOR, can be read here: http://patriotpost.us/histdocs/madamend.htm

Griswold and Roe represent absolute LOWS in Constitutional Law....because that which passed for reason or rationale in those cases completely ignored the inherent, unalienable, God-given, privacy right of the people.

[mississippi red-neck]

Provisions that applied exclusively to the federal government.

Not really. If that where the case then no law or or bill or any act engaged in or created by the Federal Government would be legal or binding unless approved of by a majority of votes by the people of each individual state.

By ratifying the constitution they agreed that those rights listed therein as "national rights" that belong to the individual people who are citizens of that nation.

That was the whole purpose of the ratification procedure. A state's ratification representative could not/would not agree that you had a "right" on a national scale and then deny you that right within the state.

Some on here confuse a "law" and a "right".

A law is something that you do or don't do.

A right is something that you have, something you possess.

[Natural Law]

The use of the term "right of privacy" has no basis in Constitutional law other than those specified in the enumerated powers and the 4th Amendment. It is a phrase couched in emotionalism. The paradox is that, as you contend, the SCOTUS has used the prohibition of federal jurisdiction to assume powers otherwise reserved to the states and the people. The judge who wrote the original article should stick to traffic court.

[tonysamm]

Whether the Constitution, Bill of Rights or Amendments guarantee the right to privacy is not the issue. The real issue / problem with Roe and other rulings by the "Supreme" Court is that it allowed one person to terminate the life of another. The Roe vs. Wade ruling caused over 4 million children to be terminated by their mothers. Then comes the Terri Schiavo debacle. You'll never find the right to terminate a life in any document written by the Founders.

[jwalsh07]

So which according to you which amendments were meant to apply universally, that is to protect the individual citizens against both state and federal government? Because I've yet to hear about a case in which a court directly extended any of the first VIII amendments to the states.

Let's keep it simple and discuss one amendment, that being the second. I understand that the BOR's limits the federal government but emphatically disagree with those who think that is all it does.

Here is the text of the second:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

The operative clause is "the right of the people to keep and bear arms, shall not be infringed."

The text clearly acknowledges an inalienable right of the people. So who exactly are the people? And what exactly is a right? According to the founders the people are the entire body of people. And if they aren't then I'd like somebody to explain to me just who the people are. And for the original intent of rights we should look to the DOI, a document signed by the body of the founders as a whole. The rights they speak of are inalienable rights meaning that the state can neither give nor take away. The second falls into that category which is why they saw nor reason to use the words "Congress shall not" or 'states shall not' in the text.

Second, the 2A contains a justifying clause but that justifying clause doesn't specify who shall not infringe this particular God given right. Moreover the Militia Act of 1792, never held to be unconstitutional, defines "the people" as just about the entire body of "free people". But the justifying clause can not impact the operative clause nor can any justification be offered to infringe on an inalienable right.

So yes there was a lot of politicking going on to get the votes to ratify but that is neither here nor there. The text is quite clear and there is no need to have courts interpret 'intent'. But if there was we should first look to the DOI for intent and the intent of the founders as a body to acknowledge God given rights which states could not infringe on.

Everything else is basically fluff.

[jwalsh07]

Yes, actually all of the first VIII Amendments contain "individual rights" but without the XIV Amendment (and the incorporation doctrine) they only protect you against the federal government.As to the IX Amendment:

Amendment I

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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The 1A specifically limits the powers of the Federal Government but does nolikeweise limit the states.

The text of the 2A and most others does not narrowly limit powers but widely limits powers of the state, including the several states and the fedguv.

Why doesn't the 2A read:

'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed by Congress.'

[Conservative Goddess]

As a gun-lover, gun-owner, militant defender of the right of self-defense myself....I understand where you are coming from......but second amendment is mere fluff when you read the body of the Constitution. NOWHERE in the body of the Constitution did we cede our unalienable, God-given right of self-defense to the feds.

Moreover, the Second Amendment only applies to the feds.....not the states. It is one of only a select few amendments that have not been "incorporated" via the 14th Amendment.

While I was visiting Portland Oregon, I visited Powell's books http://www.powells.com/ Just this side of heaven for a bibliophile.......and I found and bought: The Second Amemdment Primer by Les Adams. Here's an Amazon Link: http://www.amazon.com/gp/product/B0006QSTH4/qid=1137432686/sr=8-1/ref=pd_bbs_1/102-2022843-3591364?n=507846&s=books&v=glance

It's a tremendous little book. I highly recommend it.

[don asmussen]

Well said, -- and you will get "basically fluff" in rebuttal from those who insist that States are not required to uphold our inalienable rights, among them the RKBA's.

It's an irrational position, and they can only defend it with fluffy pronouncements about a States 'rights'. People have rights, not States.

[Conservative Goddess]

And with respect to the Declaration of Independence....it's not the definative source for Constitutional law. The Federalist Papers, found here: http://patriotpost.us/fedpapers/fedpapers.html

And the Anti-Federalist Papers, found here: http://patriotpost.us/antifedpapers/antifedpapers.html

document the debate and thinking of the Founders during the writing and ratification of our Constitution.

[Tarkin]

Why doesn't the 2A read: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed by Congress.'

I don't know. But the original understanding of the Constitution was that general language (as used in the 2nd Amendment) applied only to the fedgov. As Chief Justice Marshall wrote in Barron: "in every inhibition intended to act on state power, words are employed, which directly express that intent". You're simply reading it the wrong way. I'll post it for the last time.

BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)

The counsel for the plaintiff in error insists, that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think, that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress; others are expressed in general terms.(...)

If the original constitution, in the ninth and tenth sections of the first article, draws this plain and in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed. We search in vain for that reason.(...)

Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

[Conservative Goddess]

I wrote this for another purpose......and hopefully it will clarify the issue. Here's a snip-it:

"...The Supreme Court, specifically Justice Black, in Adamson v. California, 332 U.S. 46 (1947), said the following: “My study of the historical events that culminated in the Fourteenth Amendment [Privileges and Immunities Clause], an the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately, and as a whole, were intended to accomplish was to the make the Bill of Rights applicable to the states.”

Ineloquently phrased but well-meaning, Justice Black’s “total incorporation” theory has never commanded a majority of the Court. A string of cases, spanning from 1897 through 1971, have selectively incorporated some of the first eight amendments via the 14th Amendment. As of this writing, only the Second Amendment, the Third Amendment, the Fifth Amendment’s requirement of a grand jury indictment, and the Seventh Amendment, have not been incorporated. As a result, according to the view of the Supreme Court, the Second Amendment does not apply to the states....."