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. "
Legal Beagle alert!
I think you are definitely on to something here!
Yeah, but that was so looooong ago.
May we copy and distribute?
I would love it if Justice Samuel Alito wrote the decision.
Based on your analysis - would part of the bill be thrown out or all of it?
It would indeed be ironic if Griswold saved us from Obamacare.
Go ahead and add me to your legal list.
SnakeDoc
This would be beautiful.
Zre0 being a Constitutional Law expert must have missed it. :)
I didn't write it, the Supreme Court of the United States wrote it. I just picked out some relevant quotes. There is no copyright. :-)
and it is a small step and a hop from this one to (gasp.....)
ROE v. WADE!
the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.
The key word here is RIGHTS. RIGHTS are not something that can be governed. We have a RIGHT to life. We have a RIGHT to liberty. We have a RIGHT to pursue happiness. PURSUE happiness. You may not catch it, but you will have the right to chase after that dream as hard as you want. That means the government is out of the equation. NO WHERE IN THE CONSTITUTION OR BILL OF RIGHTS is there ANYTHING that guarantees a RIGHT to health care. You're born, you have a right to live your life how you want to live it. If you decide to smoke, drink, do drugs and have sex with random strangers, that's up to you. The American citizens are not on the hook for the indiscretions of the indigent and criminal.
The government should serve to bolster business interests in the interest of the federal government's own coffers. No one is saying that the feds don't get theirs, but on our terms. They should be eating out of our hands, not the other way around!
BTTT
Maybe the doctors of Virginia should takes this and run with it on the rocket docket.
Send a copy to Bill McCollum, Ken Cuccinelli, Mark Levin and other AGs and Attorneys.
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. "
Ping
Are you a lawyer? What you’ve done is commendable.
But unfortunately I am a fly in the ointment.
Justices have said they may review Roe. If that is the case they would not want to bring up Griswold in this case because it may compromise a later review of Roe.
I hope I am wrong and it would be irrelevant to a review of Roe.
I was wondering the other day whether the Roe decision could be used for such a delicious irony as you indicate. After all the whole foundation for Roe was that medical decisions are a private matter between a doctor and his patient and none of the government’s business.
Wouldn’t Roe be sufficient?
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