>>We shouldn’t have to amend the Constitution every time the Supreme Court botches a decision.<<
I’ve been thinking about this.
I believe there is a right to privacy but that it does not include the right to kill your child. (tempting though that me be after the age of 15). Since the right to privacy lives in many parts of the Constitution and congress can’t simply change one part, the Supreme Court needs reverse Roe v Wade. There’s really no other way to clean up the judicial precedents set by the Court in Roe, if you believe like I do.
Now, a different conservative might disagree with me. He may think privacy is not one of the non-enumerated Federal rights. He might need more than simply reversing Row to feel a win - He may feel the Supreme Court needs its scope reduced in one of the two legal ways - law or amendment.
I don’t think its so much that I’m right or that he is right but rather point our points of view are both reasonable depending on whether you think privacy is a Federal right.
I do actually disagree that there is a ‘right’ to privacy. Where do we extend this right? Where do we stop it? If you’re dealing drugs, you’re committing a crime. But if you’re doing it in your bedroom, it’s not? Well, if we’re going to be consistent in how we apply these laws, that would be the case. Your bedroom (or your home) would be your private realm and you’d have a ‘right’ to privacy there.
All of it opens a huge can of worms.
There were other decisions leading up to Roe that helped build the case for a ‘right to privacy’. The Griswold vs Connecticut decision is where the ‘right to privacy’ first came into play involving birth control. That was where the ‘penumbra’ argument first reared it’s ugly head. Again, if you apply this ‘right’ to other things, you come up with things that just plain don’t make sense.
I stand with Hugo Black and Antonin Scalia. There is no right to privacy ANYWHERE in the Constitution.
As an aside:
Judicial conservatism is about recognizing a can of worms and deciding not to open it.
This brings us to the question of how to close a can of worms once it’s already been opened. There, we begin the long and arduous task of putting each worm back in the can, one at a time, and then closing the can for good. That is how we must approach this issue.
There are so many lies that Roe v Wade was based upon, one being that a right to privacy includes a nonexistent right to kill her unborn child, because a woman has a choice to do what she will with her body.
It seems to get lost on these people or they consciously disregard it, that a few choices have already been made by her and the man if she ends up with child, and now there is another life with its own body that she is choosing to destroy.
“I believe there is a right to privacy but that it does not include the right to kill your child.”
See #57
The point is that we shouldn't be looking for "rights" in the Constitution, but instead asking whether the Feds have the power to do whatever is in question.
In the case of abortion, the fundamental question is not whether the mother has a "right" to an abortion, or whether the baby has a "right" to life, but whether the baby is a person or not. If the baby is a person, even before birth, then all the rights of personhood apply. They apply as much against the states as against the Feds.
We have to keep in mind that "rights" are really protections against government. Many of the Founders objected to including a Bill of Rights in the Constitution on the grounds that there was no point in stating a "right" to something the Feds had no power to touch. They lost that argument. Still, the so-called Bill of Rights was worded in the same way as the body of the Constitution: not to enumerate rights, but to deny powers to the Feds.