“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Well, yes. That I what I was referring to in my earlier response.
First off, I am not sure what the founders thought about imbeciles. We do know what they thought of women – they did not allow them to vote. We do know they had places in which the insane were housed. A case can be made that an insane or imbecilic person is not responsible for his or her actions (like a child) and is therefore incapable of consenting to a sex act. If we are not going to institutionalize the imbecilic, should we then try to prevent the increase in their number by sterilization? Is this such a horrible alternative, especially in view of the fact that the insane or imbecilic becomes a burden on society? One of the famous quotes of (I believe) Justice Holmes in this case was “three generations of imbeciles is enough.”
So much for the merits of the case.
Let’s then refer to a further portion of section 1: “without due process of law.” I have not researched the subject, but I doubt if imbeciles were kidnapped at random and sterilized at whim. In fact, I am fairly confident that there was a process that was followed that led to sterilization. So, unless you can provide evidence to the contrary, I would submit that they were sterilized following the due process of law.
”Wouldn't bearing children be considered a "privilege" of citizens of the United States? It's arguable isn't it?”
Of course it’s arguable. And that’s the problem. Using this section of the constitution the courts have re-arranged American society. Using this section, they have superimposed their sovereign will over us. Remember, the original intent was to have the legislatures of the nation and the various states make the laws. The judges were then to look at the constitution – a very short document – and see if there was an explicit prohibition against that law. If not, it stood. Instead, the judiciary has now decided to see if they like the law, if it’s “fair,” or “just” in an abstract sense. They are seeking cosmic justice (in Thomas Sowell’s terms). And that is dangerous in a “free” society.
OK, so you don't like the 14th Amendment. But do you really think the gov't ought to be in the business of deciding who is an 'imbecile'?
What about the 4th Amendment... "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
What's the probable cause for seizing a person of low intelligence, if they have committed no crime?
True enough. Conversationally, let me ask you, just how do you view the 19th Amendment? Do you see it as the Constitutionally-provided-for method of changing the Constitution based on the new wisdom of a changed society (Living Constitution)? Or, do you see it as the correction of an inherent flaw in the Constitution that was truly inconsistent with the otherwise brilliant writings and beliefs of the Framers? (Insert slavery corollary here.) I've always thought that our position as conservatives was to adopt the latter view. It's interesting. Imagine legislation mandating a threshold IQ in order to obtain a license to bear children. What would a liberal or conservative Supreme Court do with this? Even though I'm not certain of the best arguments that would be made on either side, my gut tells me the result would be obvious. How do you see it?
If we are not going to institutionalize the imbecilic, should we then try to prevent the increase in their number by sterilization? Is this such a horrible alternative, especially in view of the fact that the insane or imbecilic becomes a burden on society?
Yes, it is a horrible alternative. I agree with you that it is wrong to simply let the severely mentally ill to just roam the streets. That solves nothing. However, in the controlled setting of a state institution, there is a big difference between discouraging procreative conduct and state mandated surgical sterilization. I don't believe it is in the state's interest to prohibit procreation based solely on IQ. Truly, if liberals were the ones in charge of making such decisions concerning me, neither of my two beautiful children would have ever been born.
But I know that you said earlier that you may agree with me morally, but that you were looking at it from simply a perspective of what is Constitutionally permissible. Regardless of what is "permissible" Constitutionally, we are allowed to hold opinions as to what is right and what is Constitutional. Even as a strict constructionalist, I would hold that forced sterilization is akin to slavery and (prohibition of) women's sufferage in that in view of "all-time" logic and "all-time" senses of liberty (as opposed to flavor-of-the-week contemporary judicial activism), regardless of specific Amendment, these rights (liberty irrespective of race, voting irrespective of gender, procreation irrespective of IQ) are all rights that are consistent with the ideal of the Framer's vision of ordered liberty and personal freedom. As you noted, there is a social cost (slavery - loss of free labor, women's suffrage - elected Clinton twice, mentally disabled procreation - burden to state if parents are unable to care for child). Unfortunately, the current liberal "judiciary" has increasingly been making value judgments in direct contravention to public will. I think we need more Article III judges who believe in the Framer's vision of ordered liberty. I think that such a result would be approved of by a majority of Americans even if they don'y understand why.