Posted on 01/15/2006 8:22:56 PM PST by AZRepublican
I'll tackle this question since I have received three similar ones since the Alito hearing's began.
A woman can be said to have a right to abortion just as much as she would have a right to decide on a root canal. The problem though is, it isn't neither a constitutional or federal issue -- but an issue of the people through their own State legislative process to determine. The US Constitution did not invest any jurisdiction with the federal government or the Supreme Court over the life and liberties of the people.
When the Constitution was finally ratified, it had nothing to say about the federal government being the sole caretaker and protector of the peoples liberties for a very good reason according to James Madison: "The powers reserved to the several States will extend to all objects, which concern the lives, liberties and properties of the people." The Fourteenth Amendment's primary author, John A. Bingham, reaffirmed James Madison's exact words during the debates and further declared that he has "always believed that the protection in time of peace within the States of all rights of person and citizen was of the powers reserved to the States. And so I still believe."
Bingham's initial Fourteenth Amendment proposal was soundly rejected because it was seen as giving the federal government jurisdiction over the lives and liberties of the people. James Madison's initial Bill of Rights was rejected for these same reasons because he originally attempted to make the Bill of Rights a limitation upon the States as well as with Congress. Not many in Congress in 1789 and 1866 were inclined to give both Congress and the federal courts such jurisdiction. Instead, the 14th Amendment imposed its limitation directly upon the States, thereby bypassing giving Congress direct jurisdiction over the deprivation of life, liberty and property of the people without due process for violation of law made criminal.
Justice O'Connor reiterates these above principles when she quoted Chief Justice Warren Burger:
Irrespective of what we may believe is wise or prudent policy in this difficult area, "the Constitution does not constitute us as ‘Platonic Guardians' nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,' or ‘common sense.'"
Bingham himself quoted Chief Justice John Marshall as affirming that any new expansive powers that are neither expressly granted, or enumerated in the Constitution, is forbidden: "The Constitution of the United States is one of limited and expressly delegated powers which can only be exercised as granted, or in cases enumerated."
So far I have highlighted the fact that the US Supreme Court was not given any jurisdiction to rule on anything like Roe v. Wade, and therefore, the ruling has no Constitutional basis for which obligates anyone to treat it with respect or dignity. There is an another troubling aspect to Roe v. Wade that has to do with justices’ vile and repugnant disregard for another US Constitution principle: Article VI. Article VI, requires: "...judicial Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution."
What is very disturbing about Roe is how seven justices of the court could find it so easy to disregard their oaths. When a Supreme Court justice takes both of his/her oaths (justices take two oaths) he or she is not bounding themselves to upholding prior precedent -- but only the US Constitution itself. Justices who are unwilling to take their oaths seriously are justices unfit to sit on the US Supreme Court and render justice because there can never be justice with such justices.
The right to abortion is an important right that should be decided by those who do indeed have the right to decide it: the people themselves through their own local legislative representatives.
Privacy has nothing to do with abortion.
Regarding a woman's choice, no one is trying to deny a woman choice. Any woman has the right to allow a man to ejaculate inside of her. No one is trying to deny that right. However, the consequence of that 'choice' can in all likelihood result in the creation of a new human life. Once a choice leads to that result, that other life demands consideration by a government created in part for the public welfare.
Good job. At every opportunity, we must draw a parallel between Roe and Plessy. In both cases, the Court ruled by fiat. Neither case had any Constitutional basis whatsoever.
The Constitution gaurantees these as unalienable rights. "Life, Libery and the Pursuit of Happines".
So it's a question of life. If the woman's life is protected, then, unless the child presents a clear threat to the life of the mother, the unborn child's life must also be protected.
The Constitution gaurantees protection to both.
Just my personal opinion.
Sorry, but VIII is a limitation on the State, not mommy.
Torture murderers do not violate the eighth amendment.
Abortion is not punishment for a crime, and it is not (in virtually all cases) State action.
You're barking up the wrong tree.
That is from the Declaration of Independence, and those rights were secured not by the general governement, but by the 13 colonies themselves. This is why the US Constitution didn't go into this becuase such rights of the people were secured by the people and their States. The US Constitution was simply a compact between the States in forming a more perfect union and left all such manners of rights of the people where the framers considered them to belong: with the people and the States!
I agree with you. I'm just saying that when people ask where it might be covered, generally Constitutional scholars run to the ninth.
I'm not a scholar. Don't even play one on TV.
My opinion comes as a result of, what I think is, common sense.
You can't have 'liberty' or the 'pursuit of happiness' without life.
That's why they listed 'life' first.
The fact that slavery was practiced in many states made this necessary. There was no federal guarantee of freedom.
How many angels can sit on the head of a embryo?
10
It apparently never occurs to them that both expansions of federal authority are part and parcel of the same federalism-crippling phenomenon.
The only logical consistency I can see in the libertarians' approach is that they are in favor of vast federal power to the extent that it can be employed to prevent the states from outlawing marijuana, abortion, pornography or allowing religion to be expressed in the public fora, but are against federal power to the extent that it might be used to advance socially conservative goals on these same issues.
The federal government, meanwhile, tends to view increased power merely as increased power, and makes no fine logical distinctions over what that power might be used for.
Because the elites who control the federal goverment are generally anti-religion and anti-marijuana, the federal government tends to exercise its vast powers along those lines.
If you need some citation, I like post 3.
I didn't say it was punishment for a crime. Anyone needs a reason to justifiably kill someone. A a person is being killed. There is no due process in the death, other than the govm't has chosen to define that person as, a tissue mass and has placed protection of that person off limits. In fact, acting to protect that person IS a crime. It's state sanctioned murder.
I think that is the Declaration of Independance. It is the moral code of the new government. The Constitution was just the rules for operating the government. AND to limit the gov. what ever happened to that????
No idea as to what your opinion happens to be. The question I had commented on had to do with whether there is a specifically articulated right to privacy in the Constitution - there isn't.
I had further commented that some scholars go to the ninth amendment in that regard, however lamely.
More specifically, nothing stops any individual state's constitution from specifically articulating that right. It was AZConservative's observation that Madison believed that the 9th and 10th basically made sure that the individual states could and should be the ones to deal with such things as privacy.
I merely agreed with that observation.
If you are commenting as to how bass ackwards we can get in reading a right to abortion into the constitution, I'd agree with you as well. I think almost everybody agrees, even though they won't admit it on one side of the argument, that Roe v. Wade was an end run around what was bound to be a much harder fight - getting the right to an abortion in all 50 states.
However, elections have consequences, and liberals/communists being renowned (notorious?) for the cubic footage of bloodshed per historical time unit, a liberal court gave us a law that has so far resulted in the death of over 29.5 million US citizens, with a 1000 more each day.
The Democratic party in the US has managed to make Hitler and Stalin's work in WWII look like amateur night.
All laws, at all levels of govm't, are subject to Constitutional scrutiny.
"The 14th amendment gives neither congress or the courts any jurisdiction over private conduct or anything remotely plenary over the liberties of the people."
Oh? See the civil rights statutes, the 18USC24xs.
"A anti-abortion law has nothing to do with a state depriving anyone of due process"
That's correct. The baby, however is being denied their right to life.
" A anti-abortion law is just like a law against murder, it is a protective law."
That's correct. In order to evade that fact, the Court had to redefine "person", which they did. The new definition excluded the unborn. They don't have the power to do that, the legislatures do.
"And the 14th gave congress no authority to legislate over the life, liberty or property of the people...this why they had to add amendments to the constitution for voting rights after the 14th was adopted."
The Constitution itself lists voter qualifications and defines who is a person. So the amendment was necessary. Note the statutes, 18USC24xs, did not need addiitonal Amendment, the 14th gave them the power to legislate. Both in that case and in the case of the Civil Rights Acts.
"a State is perfectly empowered to legalize abortion just as they are perfectly capable of abolishing it."
Yes.
" But in either case the SCOTUS is powerless to intervene through the 14th and this is by design and intent, not interpretation."
Congress can define person. In that case, the Court has jurisdiction under the 14th.
Wrong. SCOTUS got involved because there was a group of feminists and abortion activists who had been trying for years to overturn state abortion laws, but knew they wouldn't be able to have success in any but a few states, CA, and NY being the largest ones. They discussed this with lawyers and came up with the idea that they needed some legislation that could be shepherded to the Supremes to get one big fat ruling. This had been discussed with Justices at the Supreme Court who were also interested in making abortion legal.
They decided to do it in Texas, which was the largest of the states that still had anti-abortion laws, and Sarah Weddington introduced a client, who Weddington claimed, wanted an abortion, but couldn't get one because of those laws. She sued for her client's 'right to privacy', and the case made it all the way through the appeals process, guided by pro-abortion activists all the way, to the Supreme Court, where Justice Brennan and his pro-abortion co-horts were sitting on ready to make null all state abortion laws by their ruling.
Turns out, the client, Norma McCorvey was pregnant, but NEVER WANTED AN ABORTION. She just went along for the ride. She later became a Christian, repented her involvement in Roe-V-Wade, and is now a prominent pro-life speaker.
You say privacy has nothing to do with abortion. I would say your argument is not with me put with the Supreme Court ruling in Roe vs. Wade which drew its conclusions very much from the previous ruling of Connecticut vs. Griswold.
The SCOTUS ruling used privacy as the reasoning for striking down all state abortion laws. Abortion laws which were arrived at by proper legislative action and not by court fiat.
I am pro life and would rejoice to see Roe vs. Wade overturned. At that point the question should return to the States. I don't doubt to my sorrow that some State's would have liberal abortion laws. As they did before Roe vs. Wade. But at least then the pro life movement would have a real chance to see progress in fighting against carte blanche abortion.
If the Supreme Court, with the addition of Alito, were to revisit Roe and amend or repeal the decision in favor of the states (10th Amendment justification), the effect would be to cause consternation and uproar among the left.
After that settled down, Roe would no longer be a litmus test for NOT Confirming justices based on qualification.
What then would prohibit the left from voting against (denying a nominee) to sit on the court or a court?
This is the greatest stumbling block in judical review and appointments today. With the overturn, it would end. And if GW gets one more pick, the lock would be secure. (Wrong metaphor.)
Then SCOTUS could revisit the "taking" decision and restore property rights.
And, they could further erode the ENTIRE CONGRESS (both sides are guilty) by limiting the COMMERCE Clause!
Hoping sunny days are ahead...
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