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. "
Could an amendment to the Constitution that would prohibit the Government from making ANY medical decisions for citizens be effective?
Ding, Ding, Ding....
Post of the day!
I have been thinking this for days.
Yes he would be so PWNED if it occured I would be LMAO for sure....
Sarcasm. It was sarcasm.
Hmmm...
Send it up to the Great One!
Oops, sorry about that. My sarcasm sense has been dulled by some of the absurdities I came across on another thread today.
Thanks!
Thank you for your explanation on why Griswold is applicable. However, wasn’t Roe used in the Washington State case regarding the right to commit suicide?
Here's something scary. If the government can compel you to get health care or health insurance, they can compel you to get annual medical examinations..... including.... PSYCHOLOGICAL EVALUATIONS....
Think about that one for a minute.
I did not appreciate that Griswold was actually used (and distorted) in the Roe decision (thanks) — guess I should have recognized that from your post.
I was always leery of advocating that Roe be overturned in a manner that would be used to later overturn decisions like Griswold (as you describe above). In other words, I never wanted to argue “no sir, there’s NOT a right to privacy, so Roe has to be overturned” because that kind of thinking could later could be used against other liberties. To me the focus should be on the rights of the unborn baby, correct, and much more in line with defending our rights.
Could you summarize the Griswold case or link to an appropriate summary? (Guess I could look it up but I am not a lawyer and looks like you could do it properly in two seconds.)
Indeed it does. All medical insurance policies must be in accordance with (as yet undetermined) federal mandated regulations.
Policies which do not cover such items as sex changes, bo-tox for congresswomen, abortions, assisted suicide, HIV, psychiatric treatment, chiropractic treatment; accupuncture, aromatherapy, and other as yet to be determined necessities of life will not be allowed to be sold anywhere in the United States.
But of course Obama just signed an EO indicating that "federal funds" will not be used for abortion (but that will not stop the regulators from insisting that all policies written must cover abortion).
bm
If it overturns the fortuity requirement, then I’m pretty sure I’ll be dropping my health insurance as soon as guaranteed issue and community rating kick in. Why pay premiums when I’m healthy when I can just wait until I have to file a claim to buy it at the exact same price?
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Some SCOTUS case law that might be instructive and more ammunition to give our STATE legislators a higher comfort level... ~ping~
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