You state that the constitution forbad female suffrage. I just checked my copy and did not find that. Could you refer me to the part where women were prohibited from voting?
HA!!!! You totally nailed me, fair and square! I was loosely thinking of the reference to 21-year-old male voters in the 14th Amendment, but upon review it is totally inapplicable. You're right, it always had been a state issue. It makes me wonder why women weren't screaming bloody murder from the beginning.
You are correct regarding the silence of the constitution on the issue of having children. The constitution is also silent on the issue of murder, theft, rape and a whole host of very important issues. That does not mean that the states are prohibited from passing laws prohibiting these activities.
Well yes, but I was not trying to argue that the Constitution's silence defined a fundamental right. I was trying to say that it is a matter for discussion whether a fundamental right exists here regardless of the constitution's silence. A black person's right to liberty was fundamental (as a matter of truth) both before and after passage of the 13th Amendment. What if the Supreme Court had held in 1850 that slavery was unconstitutional using a penumbra argument? Would we have opposed that because the only way to remedy is Amendment? It's interesting.
It is the role of the courts to enforce the contract in case of a dispute between the government and me.
Maybe we are splitting hairs as to whether the Constitution is a contract or not. My point is just to note that when there is a dispute between the government and me that will be decided by the courts, the courts are the government. You noted that I might argue that (and I do), but I do not do so because the concept of contract falls apart only if the courts misapply their authority. I argue that because of the inherent inequity in having all power vested on one side. It is the possibility of abuse that grates against traditional notions of arms-length contract law. If all power is on one side, whether or not it is fairly exercised, would not such a contract be unconscionable?
The ratification of the constitution and its amendments is the same as the people signing the contract and agreeing to its propriety.
Whoa! Isn't that the argument the reparation folks make? That may hold as to the original signers, but I never signed anything. I am not bound by my father's contracts, which is why I see a distinction between contract under law and law itself.
First, feeblemindedness can be passed on so from a utilitarian viewpoint it should be discouraged.
I would say the same for cancer or any other genetic malady. I would agree with your word "discouraged", but not "outlawed".
There are laws against getting a child pregnant; I can make the case that the same should be true of idiots.
My whole position presumes legal consent. There is no issue of "allowability" if consent is off the table. If medical condition prevents the possibility of consent, I still do not believe it is Constitutionally permissible to mandate an invasive surgical procedure to prevent the potential future consequences of a potential future rape (or other pregnancy without legal consent). Just as you pointed out to me that Constitutional rights are vested in "persons" regardless of gender, I would hold that fundamental Constitutional rights are vested in "persons" regardless of IQ.
I am sorry to hear about your mother. ... It sounds as if your mother developed schizophrenia at an advanced age. You have no problem with her institutionalization; in fact (from your comments) you would have preferred it. I would think that – if she were young enough – you would not object to a simple medical procedure to insure that should could not provide you with an unexpected brother or sister that could result from her meeting the Holy Ghost on the street corner who convinced her that she was really the Virgin Mary.
First, thank you for your sympathy concerning my mom. She became symptomatic only after an ugly divorce when I was about 20 (1986). I didn't mean to give you the impression that I wish her to be institutionalized. If she can (mostly) function now with her untreated mental illness, then with treatment she would be able to be a full member of society. I just want her treated. I believe that with medication she would be fine based on the experience I've had with my wife, who is bi-polar. (Insert clever comment about all the women in my life here :) ) Anyway, when my wife first went into full mania in 1999, she was wholly unable to care for herself or be in public. Her actions were those of a stereotypical "crazy" person. La-la land. She was a completely different person. It was the scariest day of my life because I had no idea what I was going to get back even after treatment. Well, after treatment and the correct medications, which she will be on every day for the rest of her life, she is 95% back to normal. The doctors I have spoken with say there is no reason why the same would be possible for my mother, although her age and the length of time she has not been treated complicate things somewhat.
It's funny, your Holy Ghost example in no way exaggerates the type of thing that goes through my mother's mind. I just believe that if she were treated, she could be back to normal. The infuriating frustration is that she can act sane enough if she knows her freedom is on the line, but she is by no means "herself". Because of this, I would not agree that, were she younger, she should be forcibly sterilized, or more specifically, that the government should have the right to do so. My experiences have shown me that the "competency" scale is vast, with "low scores" caused by genetics, illness, or injury. Some low scores can be greatly improved, some cannot be improved at all. How can we write legislation that is fair and Constitutional with this level of complexity and medical uncertainty?
… and then if we decide that offspring is inconvenient, or we change our minds, we can kill it and be hailed as enlightened souls on the vanguard of society. In a few years, we will find in Roman Law the right to kill our children up to adulthood and will Ruth Bader Ginzberg embrace it?
Amen. I suppose it will depend on whether the mother's health is at issue. What if the baby gets a cold and could pass it on to the mother? That seems like justifyable grounds for a post-natal abortion, doesn't it? We must protect women's rights!
Well, I would say that such a finding would be in direct contradiction of other sections of the constitution which specifically acknowledged the legality of slavery. So, yes, I would oppose such a ruling and go for an amendment.
Your argument reminds me of the argument being made that the court should outlaw capital punishment – again referred to specifically in the constitution – using the excuse that it is “cruel and unusual.” Such an act by the court would be an exercise of raw judicial power and, in my view totally wrong.
The issue is a very basic one. Is the Supreme Court’s role to insure that the legislature and the executive adhere to the written constitution, or is its role to act as a permanent constitutional convention … changing the constitution from time to time without the necessity of a formal amending process? That is a very, VERY large power and one that I, for one am not comfortable giving to 9 un-elected people in black robes who hold office for life.
To use a football analogy, the role of the referees is to call fouls and judge the position of the ball. Once we give them the right to move the goal posts, we don’t have a “fair” game any more. In fact, we don’t know what game we are playing.
”My point is just to note that when there is a dispute between the government and me that will be decided by the courts, the courts are the government. You noted that I might argue that (and I do), but I do not do so because the concept of contract falls apart only if the courts misapply their authority. I argue that because of the inherent inequity in having all power vested on one side. It is the possibility of abuse that grates against traditional notions of arms-length contract law. If all power is on one side, whether or not it is fairly exercised, would not such a contract be unconscionable?”
I’m not sure I understand your argument here. Let me try again to show you the reason the constitution is a contract between the people and its government.
First we had a constitutional convention in Philadelphia where the terms of the contract were drawn up. It decided how the government was going to organize itself, what its powers were and how it related to the states and the people. It made provisions for changes in the agreement and for changes in the government based on the votes of the people. Thus the contract was written.
It was then submitted to the people for ratification. The people signed on and only after that were the constitutional “contract” provisions put in force.
But, you say, the government has all the power. I reply: no, not in a constitutional republic like ours. We can, via the ballot box change part of the government (executive and legislative). See, it’s right there in the contract in article 1, 2 and various amendments. In that respect, the people hold more power than the government. The only thing we cannot directly change is the court. It is the court that has the traditional role of insuring that the state follows the constitution. It is the court’s traditional role to insure that the state cannot do anything to its citizens that is not allowed by the constitution. It is definitely not the role of the Supreme Court to decide when a society’s mores change and, with the stroke of a pen, create new law based on their personal preferences or, in Crazy Ruth’s case, find American law in European law.
Regarding relative powers, as long as we live in a representative republic with a free press and the right to assemble and petition for redress of grievances, we will never be powerless against the state.
Finally, if you feel powerless against the state, the only logical conclusion that I would draw is that you prefer the absence of the state. However, it is the state that protects most people from the raw rules of nature “red of tooth and claw” where life is “nasty, brutish and short.”
The best to you and your family; keep those meds coming and it’s been nice chatting with you.