Posted on 10/17/2005 3:43:34 PM PDT by RWR8189
And that a "right to privacy" exists in the Constitution...
Nothing more yet...
Yes and so should every opponent of our judicial tyranny. You can read the opinions here. The majority opinions are a mess, full of penumbras and emanations and what not where activist judges backfill for their desired result. The dissenting opinions are quite good. Here is a snippet from Black's dissent.
One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. ... For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from [381 U.S. 479, 510] one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.This is from Stewart's dissent.
At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial [381 U.S. 479, 531] duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
I believe they care about facts. They are sincere in their fears. If there are any on the dark side who are just doing it for the fun of it, they must be a very small few.
I disagree with their conclusions (to some degree, obviously since I'm still on the "wait-and-see" team), but I do think in their own misguided way they are doing what they think is best for what they believe in.
If we lose that, then we really will be lost. I think that is what Rush is trying to say when he talks about this issue -- we are debating not becuase we have competing political agendas, but because we have wildly divergent views of how to accomplish the task.
OK, now I've got a whole nuther thread to read. I was looking forward to a relaxing evening watching football.
I just found an old thread about it...but, from the way I read it...
It sounds like it is more about the state having to PAY for, and provide the transportation so she can have one.
I don't think this ever was about whether she could have one...just how she would get there...since the state law says that they cannot pay to transport for that reason.
So, if the Supreme Court says "Yeah, she can get an abortion"...aren't we back at square one?
According to the article, she said that her family has borrowed money to pay for the abortion, but they can't afford the transportation.....which the state estimates if THEY pay it would be $350.00.
I will ping you to the site...if you would like.
The law was not enforced at all, and Griswald was actually a set up job to get the case to court, orchestrated by some Yale professors from beginning to end. It was staged, sort of like the Scopes trial. History is just so interesting. I cannot imagine how anyone could find it boring.
We've been debating "where."
I take the position that the right to privacy was preexisting.
Douglas, writing for the majority in Griswold said
"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment."
THe majority in Griswold was not uniform in its rationale for reaching the conclusion. That difference in rationale has ramifications beyond the instant case. Keep reading these, and pretty soon you'll think Ccom Law is like rocket science ;-)
Remeber, these are the majority, not the dissent. I think White got it right, FWIW.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.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, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments , I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution 1 is supported both by numerous [381 U.S. 479, 487] decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of that Amendment to the Court's holding.
MR. JUSTICE HARLAN, concurring in the judgment.I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.
In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the "incorporation" approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them.
In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 . For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.
MR. JUSTICE WHITE, concurring in the judgment.In my view this Connecticut law as applied to married couples deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute.
Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships. ...
In these circumstances one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State's policy against such relationships. ...
The traditional due process test was well articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of Rights.
[IOW - White reaches the same result, overturn the CT law, without reference to the Bill of Rights]
The federal constitution does not "grant rights" to the people. It limits what the government can do to the people.
The inclusion of the bill of rights was meant to specifically stop the government from forgetting their place in certain specific cases that were known to be troublesome. But the 9th amendment makes it clear that these are not our only rights.
Again, forgetting for the moment the power of states -- What part of the federal constitution would be used to determine that the federal government had the power to restrict the use of a contraceptive (assuming also for the sake of discussion that the contraceptive is preventative)?
I'm a bit of a libertarian so my answer is that it isn't there. But I believe the government has no constitutional right to keep me from growing the plant cannibis in my back yard, even if they have the right to keep me from selling it or smoking it.
It would be hard to see how you would extend the commerce clause to the use of a condom.
I bet Griswald has wording in the opinion that is dead wrong, even if I agree with its conclusion. I know Griswald is used to expand rights to places where the government clearly has the power and the obligation to regulate -- but just because a ruling is used to make bad law doesn't mean the ruling itself was incorrect.
I can't imagine any justice making it through confirmation if they did not say the agreed with the result of Griswald.
Since there will not be a transcript of the conversation, we have to accept that Specter is going to put his spin on her answer, just as Schumer did, in order to strengthen their positions.
Roberts pledged fealty to the outcome of Griswald, while strictly limiting the area of applicability he would accept without question. I presume that in the hearing, Miers will be asked the same question, and will likely provide the same answer (she's probably memorising it as we speak).
Yes, I got that in the jist too - forgot to say so in my quick note.
Thanks for the offer of ping - I'm not up to getting into the case at this ime. It may pop up on my radar sometime in the future. I tend to go on an issues-driven basis, and collect a number of cases on the same subject, and I'm not up to doing that, with this. After all, it's just $$. I'm more concerned with saving the lives ;-(
Yes. And that debate is not going on, because the eyes are on Miers, the nominee. ANd one side of that "trusts," and honest trust cannot be compromised, ergo, no discussion. Question trust, and viola, you are disloyal, etc.
You and I have swapped enough notes. Loyalty and the GOP and I goes two ways. ANd I hold pretty high expectations for forthright and honest dealing.
Thanks for the kind words. They mean alot.
The rights of the people are not fully "enumerated" in the constitution, in fact the bill of rights specifically ENUMERATES that the fact that some rights are enumerated does not mean that we don't have lots of other rights.
This has nothing to do with my position on Miers. We are endowed by our creator with unalienable rights. The constitution restricts how the government can interfere with our rights. It doesn't define where we are free, it defines where the government is empowered.
The government can only forbid an action if it can show that there is a legitimate (meaning constitutional) purpose for forbidding an action.
It makes their heads hurt.
I'm awful at rote memory. I do better at math and analytical stuff. So history and I have sort of a mixed bag going. Plus, memory, well you know what they say. It's the second thing to go.
But since some aren't sure of Roberts, I provide this snippet from the NY State Right-to-Life committee, which was posted after some questioned Robert's answer on Griswald:
Pro-Life Attorney: John Roberts Giving Good Answers on Abortion
Some pro-life advocates are concerned about Roberts' comments on the Griswald v. Connecticut birth control case from the late 1960s that created the privacy notion the high court used to allow abortions in Roe v. Wade. Roberts called the case "settled law."
"His answer to that question was the same, word for word, as [pro-life Justice] Clarence Thomas," Sekulow said.
Sekulow explained that Roberts told the Senate Judiciary Committee that the case had to do with marital privacy and Roberts "specifically said it is not resting within the context of penumbras, or emanations of the 14th Amendment" as the high court claimed in Roe.
"That is where the Roe v. Wade rights came into play, and he answered exactly the same way that Justice Thomas did, and I think he holds the same viewpoint," Sekulow argued.
If accurate (and I can't imagine that Jay Sekulow would have lied about something that must be in the official senate record), then we have Thomas saying the same thing as Roberts, which is probably the same thing Miers said (although we don't know that).
I say this to point out that Miers could say she supported "Griswald", and in fact be exactly in the mold of Thomas.
Post #13 was in error as regards Griswald. Post #9 clearly shows Roberts said he supported the outcome of Griswald. You have no indication that Miers said any more than that.
Abortion should be protected if the fetus is nothing more than tissue. We wouldn't want the constitution to grant the government the right to tell you you can't pick the zit off your face.
If Abortion is the murder of a child, then the "right to privacy" has no meaning, because that right cannot extend to action against another. The constitution clearly gives the government the power to protect the life of each citizen.
I am for sodomy laws, but they are more problematic from a libertarian perspective. What compelling government interest applies to prevent a person from engaging in specific consensual acts? I would argue that the basic violation of nature, the harm of the spread of disease which effect the common good could be used to defend such a law.
But I do err on the side of forcing the government to prove there is a good reason to mess with my freedom.
Assisted suicide can be regulated by the state for the following reasons:
First, the medication used falls under the commerce clause, the government has the right to restrict prescription of medication (as per the medical marijuana case).
Second, assisted suicide can put undue pressure on citizens to give up their right to life under duress. We have a compelling government interest in protecting life from any possibilty of coersion.
Even unassisted suicide may fall under the 2nd category, although since he person is dead it's kind of hard to punish them.
How about a more secular argument? Life begins at conception. As soon as the egg is fertilized, the only distinction between that embryo and the man on his deathbed is time.
But, the woman has a right to control her own body. It is merely an act of nature that this embryo has come to exist within her body. If I see someone laying on the side of the road bleeding, I have no legal obligation to stop and help, much less to offer my own blood transfusions, or organs, or lodging.
However, if I pick up someone lying on the road, drive them halfway to the hospital, and then decide it's too much bother and throw them back out on the street, I am legally liable.
So, the woman has no obligation to allow the embryo to implant in her body. The woman has the right to take any steps she wishes to prevent that implantation -- like driving by the drunk on the side of the road and NOT helping.
But, once she has accepted the implantation, she has accepted the obligation to care for that embryo, at least until it can be cared for by someone else (which for now means until it is viable). That her body may do so involuntarily is just another of those unfortunate truths of nature. The woman has the ability to stop it, if she doesn't she's stuck.
OK, I know we could argue that forever -- I just present it as a way to describe a rational secular pro-life position while allowing contreceptives that act both before and after conception.
Self-selection would be a negative, but in this case she didn't choose herself.
You can argue that the person who chose her had a personal gain which could cloud his judgment, but there is no evidence that it did, or that he did gain, or knew he could gain. This is just a "possible" advanced by Frum to explain why he didn't like the nomination.
If you pick the right people to advise you, you don't have to worry about them giving you bad advice because they will personally gain. If you pick people who are looking for personal gain in their advice, this particular issue would have been the least of our worries in the administration. Every day Bush gets advice on many things, some of which could reasonably benefit someone giving the advice.
Again, forgetting for the moment the power of states -- What part of the federal constitution would be used to determine that the federal government had the power to restrict the use of a contraceptive (assuming also for the sake of discussion that the contraceptive is preventative)?I don’t think you are clear on what I said in my post, to which you are responding. I have not contended that the US Constitution gives the federal government the power to restrict the use of a contraceptive.
patent
By that same measure one could contend there is a legitimate disagreement about whether or not the Constitution covers the right to kill your baby. That an insane people refuse to accept the truth hardly makes the disagreement legitimate.There is no right to contraception in the federal constitution, nor should there be. It should be a state matter, regardless of whether you want it legal or not.There is a legitimate disagreement about whether the constitution covers a right to privacy in marriage.
Do you believe that the right to assisted suicide should also remain a state matter?Yes. There is no question in my mind it should be a state matter. I may not like it, as I know some states would allow it, but that’s my read of the Constitution.
patent
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