Posted on 03/24/2010 1:39:13 PM PDT by P-Marlowe
Here are some selected quotes from Griswold v. Connecticut, 381 U.S. 479 (1965).
If you don't know, the Griswold decision was the forerunner of Roe v. Wade. Griswold was based upon the Supreme Court's determination that under the Bill of Rights and the 9th Amendment and the 14th Amendment that there are certain Liberties, not otherwise mentioned in the Constitution that the State (including the Federal Government) cannot infringe. The following quotes are taken from that case and I believe make the argument that under the 9th Amendment the Federal Government cannot force an individual to purchase Health Insurance and further that a Government sponsored Health Care Plan would violate the right to privacy as enunciated in Griswold.
It would be a delicious irony if the Supreme Court used the Griswold case to overturn the Health Care bill. Here are some selected quotes:
Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases. In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.
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The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy.
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The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116 U. S. 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." 381 U. S. 656
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a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307.
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the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.
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The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
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"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis. . . . But a conclusive answer is that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people."
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II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891). He further stated, referring to the Ninth Amendment: "This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well known maxim that an affirmation in particular cases implies a negation in all others, and, e converso, that a negation in particular cases implies an affirmation in all others."
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Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e.g., Bolling v. Sharpe, 347 U. S. 497
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The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.
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Ninth Amendment -- and indeed the entire Bill of Rights -- originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 94-95.
In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105. The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' . . ."
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I agree fully with the Court that, applying these tests, the right of privacy is a fundamental personal right, emanating "from the totality of the constitutional scheme under which we live." Id. at 367 U. S. 521
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There are more, but here is the clincher:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. "
Where in the constitution does the Federal Government have the authority to take it away?
Of course the govt. has no authority to usurp privacy; but that would be because the powers of the federal government are thankfully (or were thankfully) LIMITED by the Constitution. But it can usurp “rights” that it, rather than nature’s laws and nature’s God, granted.
No, the Justice called the Law they overturned a "silly law".
I don't think you will find any Supreme Court Justice who has ever called another Justice's decision "silly". I just don't think that would happen.
You’re right, I see. But you probably also noticed that he also saw it as constitutional. They’re normally more politic than to call another justice or his prose “silly.” But White didn’t hold back much when commenting on Roe—”raw judicial power” is pretty pungent.
It was a wobbler. I think White fell on the wrong side of the issue on that one, but then he had just come off a series of decisions that had robbed every American of most of the Liberty that our founders had fought so hard to give us. At that time the Courts were rubber stamping just about every law that came out of Congress based on the alleged plenary powers of congress under the Interstate Commerce Clause.
This law was so minor compared to some of the Congressional laws which had limited our freedoms (indeed this law was not even being enforced in Connecticut), it was just used as a ruse to push for this "right of privacy" that Douglas was determined to later use to give him the authority to overturn abortion restrictions (which are clearly NOT silly laws).
That is why it would be so delicious to use Griswold to overturn this Health Care monstrosity.
If the ACLU protected the second amendment right as vigorously as they have this alleged right to an abortion, gun ownership would be mandatory.
What about 'DA MAN? :) From 60 Minutes Interview with Justice Scalia:
The man tells it like it is. That's why I love him. :)
But notice he cleverly avoided calling her opinions "silly" :-)
And thank you for giving me the heads up, dearest sister in Christ!
Griswold clearly should be used in arguing that the Health Care Act is unconstitutional. Either the Supremes stand by the Griswold "right" to be left alone or they weaken Griswold and Roe along with it since it stands on it.
Excellent points. Someone pointed out (Tom Roeser, perhaps) that insurance is not a right, but a good. It’s a good thing to be insured against disasters of all kinds, including health disasters. This, unfortunately, is not what the “health care” bill is all about.
I was thinking alomg similar lines and posted here:
Any Legal Scholars? Abortion & Healthcare Reform are legally incongruent?
http://www.freerepublic.com/focus/chat/2481482/posts
I am shocked! How dare you question the "one" -the great telepromptered mouthpiece of hope and change... Katie Courick would not be amused...
/end sarcasm
Now I KNOW I'm on the right track!
BETWEEN THE LINES
Roe v. Obama, Pelosi, Reid et al.
Exclusive: Joseph Farah applies abortion 'privacy' argument to nationalized health care
--WND (3/32/2010)
It's possible, but my point was that we stay away from Roe and concentrate on the holding in Griswold. Farah must have missed that message.
Roe is based on Griswold, but is a bastardization of the holding. Griswold stands for the proposition that dealings between a doctor and patient re: healthcare are confidential and under the protection of the privacy right enunciated in Griswold and therefore the government has no business getting involved in those decisions.
Whether or not a abortion qualifies as healthcare is a horse of a different color.
As per our Constitution, unlike health care, a Legal Defense is a specifically an identified right -even, as has been held, for non citizens.
Now, if one compares and constrasts how this established and specifically identified right is handled, has been handled, and codified into law and practice one should easily be able to see just how far this newly derived right of health care is overstepping by its very nature...
IF this supposed right has been there all along then where has it been hiding in regard to law and common practice? Further, IF it is deemed a right THEN why the disparity between how a legal defense has commonly been afforded and how health care is now afforded under this new law?
In my opinion, the health care reform law is comparable to requiring citizens to purchase an insurance policy for potential legal problems -in essence maintaining a law firm on a contingency basis -all this is a right? How can a right be mandatory?
Exactly. bttt
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