Replies

Are you saying that there's no such thing as a right to to privacy, or that this right was wrongfully used to justify the "right" to abort?

Of course there's a right to privacy; it just isn't in the Constitution. The Supreme Court discovered a previously unknown new Constitutional right to privacy in Griswold within the “penumbras” of certain amendments in the Bill of Rights. As Dave Barry would say, I am not making this up.

Having invented a Constitutional privacy right out of whole cloth, the Court then "interpreted" this right to require overturning a local law against selling contraceptives to married couples in Griswold, and five years later, to strike down laws restricting or prohibiting abortion in all 50 states in Roe v. Wade.

Whether the laws in question are good or bad is beside the point. In order to overturn those laws, it was necessary for the Supreme Court to say they were unconstitutional. They did so only after a tortured process of discovering a new Constitutional right not expressly found in the text of the Constitution and then interpreted this privacy right in such a way as to find a Constitutional violation. The approach is so transparent and the arguments applied so disingenuous that it’s clear they first decided what the result should be, then came up with a way to reach the preferred result.

Legislatures pass all sorts of laws. Some laws are stupid. Some laws are bad. It isn't the Supreme Court's job to overturn or rewrite stupid or bad laws, but to decide cases and only when it’s absolutely necessary, to strike down unconstitutional laws. Otherwise, the Court is simply rationalizing the substitution of its own non-existent legislative authority for the legitimate law-making authority of the appropriate legislative body authorized to write the law.

What the Supreme Court did in these cases is equivalent to an umpire overturning a manager's decision not because it was illegal, but because the umpire thought the manager's decision was foolish. Imagine if an umpire during the deciding game of the American League Championship announced that he was overturning Grady Little's decision to leave Pedro Martinez in the game. Imagine the umpire justifying his bizarre actions by claiming that the umpire thought Little's decision was foolish. The outcry and furor would be immense and the umpire would immediately be fired. Why? For starters, because everyone knows it's not his job to make managerial decisions. Even if most people think Grady Little's move was dumb and the umpire's was smart, no one would tolerate an umpire substituting his non-existent managerial authority for Little's legitimate authority. More importantly, an umpire’s interfering in the manager’s authority undermines the umpire’s own legitimate authority because an umpire is supposed to be impartial and acting to correct the mistake of one of the teams is decidedly partisan act.

The problem is crystal clear when we use an example like baseball. But few question when the Supreme Court does basically the same thing on the judicial playing field.

Now wait a minute William, the fact that the government may have wrongfully denied rights to citizens for decades does not translate into the fact that the government was right in doing so. Women were denied the right to vote for 120 years after the creation of the nation, and blacks for the same 189 years that the government wrongfully gave itself the "right" to deny access to birth control to citizens.

The context of my statement was in response spunkets' claim that there was an "absolute right to birth control." I was simply pointing out that if this was an absolute right, it’s odd that no one ever thought it was for most of our nation’s history. The history of voting rights doesn’t refute my point because there isn't an absolute right to voting either. Otherwise felons, non-citizens, infants and mental patients would all be permitted to vote.

I think it's absurd to speak of a "right" to birth control, much less an absolute right. It’s like saying you have a “right” to Play Station or Xbox. No one disputes that you can buy video games, but it seems decidedly odd to me to frame the purchase and enjoyment of Final Fantasy as the exercise of an absolute right. At best, birth control is arguably loosely related to healthcare. Is there a "right" to healthcare? Is there an *absolute* right to healthcare?

To say that someone has an absolute “right” to something implies that someone else has a responsibility to provide it unless the right is self-executing, like free speech. (BTW free speech rights aren't absolute either. Otherwise you could shout “Fire!” in a crowded theater or publish planned troop movements to our enemies.) Condoms and IUD's don't grow on trees, they cost money, so someone else has to pay for them if they were an absolute right and you couldn't afford them.

Whose job is it to provide free birth control to those who cannot pay for it? If no one has such an obligation, and you agree you only have the “right” to obtain whatever birth control you can afford free of interference from the government, then you've qualified it, so it's no longer absolute.

I assume that by absolute right to birth control, spunkets means an absolute right to *effective* birth control. After all, a right to defective condoms, for example, clearly isn't much of a right. There is no 100% effective form of birth control, so I don’t see how anyone can have an *absolute* right to something that doesn't even exist.

I didn't get a chance to answer spunkets' post to me from last night. He seemed to assume he considered the source of our rights to be the "sovereign will of the individual." I was going to say that wasn't obvious since when Jefferson wrote all men “are endowed by their Creator with certain rights,” he assumed a very different source for our right to “life, liberty and the pursuit of happiness.”

I noticed that in subsequent posts, spunkets seemed to be saying that rights derived from the sovereign will of the individual or the Creator are basically the same thing. I disagree. As an example of the former, I would include rights mentioned in a document the Declaration of the Rights of Man. As an example of the latter w/b the rights Jefferson spoke of. I believe Danton, Robsepierre & Co's list was rather different from Jefferson's “Life, Liberty and the pursuit of happiness.” Even if they're both speaking of the same right, the meaning is entirely different precisely because they originate from different sources.

To say that the Creator is the source of certain rights means we deny to governments or to the mob the authority to issue or take away these rights. By contrast, whatever rights the "sovereignty of the individual giveth, the same individual can taketh away. Soviet citizens were legally granted with most of the rights and privileges we enjoy as American citizens, plus lots of other rights and privileges we don't even claim to possess. The rights of Soviet citizens were bestowed by “the people” and they were frequently arbitrarily stripped by “the people” as well.