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Post 20

Sunday, July 17, 2005 - 10:45amSanction this postReply
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On that abortion point, Robert - 'Mother Nature' does that numerous times - does that make 'her' a murderer?

Post 21

Sunday, July 17, 2005 - 11:32amSanction this postReply
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Robert M,

Don't mind Robert D. Whatever he finds inconvenient he just calls "unclear." If abortion is delayed because fetal defects were not discovered until the third semester, or because of delays forcibly imposed by Christianist legislation, he calls it "dawdling." All the evidence shows that there is no consciousness, and therefore no self, before independent interaction with the environment - the necessary parts of the brain just don't develop without it - but RD insists that an unborn fetus has a self anyway. Such trolls are best ignored.

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Post 22

Sunday, July 17, 2005 - 12:09pmSanction this postReply
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Roe v. Wade is a terrible decision. An earlier post hinted at the distinction between "moral/right" and "constitutional" and correctly concluded that they aren't always the same. Roe v. Wade is the perfect example.

Many people agree with the "end" Roe v. Wade seeks to attain (woman's right to choose, privacy rights, etc.) but they don't closely examine the "means," i.e. people don't "check their premises" here. Roe v. Wade is rooted in a Constitutional fiction...a "right to privacy" which was inadvertantly left out of the Bill of Rights...the assumption being that Ben Franklin and his boys were so preoccupied with the heat at the convention that they forgot to mention a right as "fundamental" as "privacy." Consequently, the modern Supreme Court was forced to pull this fundamental right out of the "penumbras" or "peripheries" of Amendments that weren't forgotten amid the spectacle of Franklin's latest "air cooling" concept. Of course, any rational person should dismiss this as absurd knowing how many hours the framers debated each and every Amendment that was eventually included, or not.

Bottom line with Roe... there is no right to privacy in the Bill of Rights...ON PURPOSE! If you want one, you have to put it there via the Amendment process. If you allow justices to "discover" rights in the "penumbras" of Amendments, there's no end to what they will find. What if President Bush named Pat Robertson to the Supreme Court and the Senate actually confirmed him (also suppose the Senate was high on Roofies). Imagine what Robertson would find in the "penumbra" of, say, the First Amendment... Scary thought... Back to my point. Either you put a right to privacy in the Bill of Rights or you accept that its just not there. Without a right to privacy, the abortion issue is left to the states. And in Florida, guess what our constitution contains? Yea...an explicit right to privacy. "And your state can do it toooo!" Abortion would still be legal in Florida and any other state that has an explicit right to privacy, regardless of how Roe v. Wade came out. So my point is that there is a way to preserve a woman's right to choose, there is a way to acknowledge a fundamental "right to privacy" without having to extend to Supreme Court justices the discretion to pull their favorite rights out of the bottom of the cereal box.

Lengthy... and I sincerely apologize.


(Edited by Lyman Bradford
on 7/17, 12:22pm)


Post 23

Sunday, July 17, 2005 - 12:24pmSanction this postReply
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Oh my, here's another one - so many just not see the Nineth Amendment, and all it implies...

And yes - myself agree - life, HUMAN life, begins at birth, when it indeed is 'all systems go'...


Post 24

Sunday, July 17, 2005 - 12:29pmSanction this postReply
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I'm well aware of the 9th Amendment...but the Roe v. Wade decision is not based on the 9th. Indeed, it would have been the Court's strongest argument FOR a right to privacy. Unfortunately, its not the Amendment utilized by the justices in deciding the Roe decision...so in reviewing the validity of the Roe decision the 9th is irrelevant.

Post 25

Sunday, July 17, 2005 - 1:22pmSanction this postReply
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Lyman,

You write, "Roe v. Wade decision is not based on the 9th."

From a Boston University (a Christian institution) course:
Basis of the Roe v. Wade decision: Roe v. Wade was decided primarily on the Ninth Amendment to the United States Constitution, a part of the Bill of Rights. The Court's decision in this case was that the Ninth Amendment, in stating that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," protected a person's right to privacy.
Next time, please keep in mind that the other participants in SOLOHQ have learned to read.

(Edited by Adam Reed
on 7/17, 1:29pm)


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Post 26

Sunday, July 17, 2005 - 10:48pmSanction this postReply
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The article you cited is from "about.com," not "Boston University." If you meant to say that your BU class assigned this article as part of the course curriculum, I would like to express my disappointment in the fact that the Roe decision itself wasn't assigned reading. I know its long and tedious but you guys are Christians! What's longer and more tedious than the Bible??

To the point: Roe v. Wade affirms a lower court decision that applied the 9th Amendment to the State of Texas via the 14th Amendment. As you may know, the 14th Amendment "incorporates" the protections within the Bill of Rights and makes those protections applicable against State violations. Before passage of the 14th, the Bill of Rights applied only to constitutional violations by the Federal government. Of course, the 14th Amendment contains certain constitutional guarantees itself that are also applicable to the states. This is referred to in the legal community as "substantive due process."

The District Court in Roe believed the abortion law in Texas violated the appellant's "right to privacy," which that court believed was found in the "reservation of rights" clause of the 9th Amendment. Thus it found a 14th Amendment violation on the part of Texas.

Although the Supreme Court affirmed the District Court's decision (which leads some people to incorrectly conclude that the Roe decision is based on the 9th Amendment), it did so ONLY because it found the 14th applicable REGARDLESS of whether the right to privacy is found in the 9th Amendment, the Penumbras of Amendments 1, 4, and 5, OR in the substantive due process clause of the 14th itself. One way or another, the 14th applied.

Justice Blackmun did suggest, however, that the 9th Amendment probably was NOT the strongest argument in favor of applying the 14th Amendment. In fact, Blackmun drew a distinction between the lower court's consideration of the 9th, and the Supreme Court's opinion of the applicability of the 9th. Consider the following excerpt from Blackmun's majority opinion in Roe:

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, AS WE FEEL IT IS, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (Emphasis added)

In sum, the only conclusion one can draw from the Roe decision itself is that Roe is based on the 14th Amendment...whether the 14th applies because the Texas Law offends the 1st, 4th, and 5th penumbras, the 9th Amendment, or the due process clause within the 14th.

The best argument one can make is that the Roe decision is NOT based on the 9th and is probably based on the substantive due process clause of the 14th itself...in which case the 9th Amendment would be irrelevant...as I pointed out in my earlier post. This argument is further strengthened by subsequent Supreme Court decisions interpreting the Roe decision, specifically the Planned Parenthood v. Casey decision in which Justice O'Conner uphold the bare bones of the Roe decision, tossed out the rest (including the trimester framework) and did it all pursuant to the due process clause of the 14th. Again, the 9th Amendment was irrelevant to the decision.

How does this all apply to my initial point a couple posts ago? I don't believe there is a right to privacy in the U.S. Constitution. I don't believe it is in the penumbras of Amendments, I don't believe it is in the 9th Amendment...because if it is...so is ANY OTHER RIGHT you can dream up, i.e. welfare, healthcare, etc. Nor do I believe in "substantive due process." My state has "right to privacy" in its constitution...abortion laws violate that clause...and therefore are unconstitutional in my state. I think other states should follow suit and if they don't, then people should move to Florida. Vote with your feet. The weather's better here anyway.

Post 27

Monday, July 18, 2005 - 1:11amSanction this postReply
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You make the nonthinking common mistake that whatever is claimed as a right can therefore be one - not so.  There are no rights which violate other's rights, as rights pertain to the individual, which means in turn they pertain to every individual - thus only a claimed right which does not violate an individual's right can be a true right... as such there is no such thing as a 'right' to welfare, nor a 'right' to education to, nor a 'right' to medical services, etc. - only a right to seek these, because to claim these and other similars as 'rights', as a due to oneself, is to claim a 'right' to slavery, for it means forcing another to provide, not you earning the provision...

Even the Declaration of Independence acknowledges this, in its stating of the right of '...the pursuit of happiness' - not happiness, but the pursuit of it... 

(Edited by robert malcom on 7/18, 1:15am)


Post 28

Monday, July 18, 2005 - 6:48amSanction this postReply
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Adam,

I have pulled my punches with you for a while now.  If, however, you ever call me a troll again all bets and gloves are off.


Post 29

Monday, July 18, 2005 - 6:50amSanction this postReply
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Robert,

As there is no such creature as Mother Nature, it is difficult to form a response to your question.


Post 30

Monday, July 18, 2005 - 7:05amSanction this postReply
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Lyman,

You are casting pearls before swine.  Your arguments are cogent and to the point.  I salute you.

Robert,

To your 'edifying' post 27 regarding positive and negative rights, I say duh. 

For Luther, Adam and Robert

Please note that Rand and Peikoff have the same reservations I do about late term abortions.

Peikoff

Fetuses and embryos are not actual human beings; they are potential human beings. They have no rights until they exist apart from the mother, i.e., at birth. This is not to condone the morality of arbitrarily delaying an abortion until the last months of pregnancy — when the fetus is approaching humanness. (emphasis mine)

 

 "A piece of protoplasm has no rights-and no life in the human sense of the term. One may argue about the later stages of a pregnancy, but the essential issue concerns only the first three months.-Ayn Rand (emphasis mine)





Post 31

Monday, July 18, 2005 - 7:09amSanction this postReply
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Here’s a little background on the “penumbras doctrine.” It was named and analyzed 1965 in Griswold v. Connecticut, 381 U.S. 479. Justice Douglas delivered the opinion of the court. Here is a relevant excerpt where I’ve highlighted some key points:

 

In NAACP v. Alabama, 357 U.S. 449, 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. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430-431. In Schware v. Board of Bar Examiners, 353 U.S. 232, we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.

 

 Those cases involved more than the "right of assembly" - a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353. The right of "association," like the right of belief (Board of Education v. Barnette, 319 U.S. 624), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. 

 

 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." 

 

 The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." We recently referred in Mapp v. Ohio, 367 U.S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960). 

 

 We have had many controversies over these penumbral rights of "privacy and repose." See, e. g., Breard v. Alexandria, 341 U.S. 622, 626, 644; Public Utilities Comm'n v. Pollak, 343 U.S. 451; Monroe v. Pape, 365 U.S. 167; Lanza v. New York, 370 U.S. 139; Frank v. Maryland, 359 U.S. 360; Skinner v. Oklahoma, 316 U.S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one. 

 The Court found that the right to privacy is implicit within the first amendment. And if you're interest, the "incorporation doctrine" allows the 1st amendment to be applied to the states via the 14th amendment's "due process" clause. Or if you'd prefer, the "fundamental rights doctrine" allows the Court to Constitutionally protect basic rights against both the states and the federal government by locating those basic rights within and protecting them under "liberty" in the 14th amendment.

 

Jordan


Post 32

Monday, July 18, 2005 - 9:18amSanction this postReply
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Jordan,

Thanks for that post. I considered dropping an excerpt from the Griswold case in my previous post but I figured it would have made my argument too long. Most people don't like to read more than a couple paragraphs.

Reread the excerpts from Blackmun's opinion in my post. He touches on the different approaches to the "right to privacy," i.e. whether it be found in the "penumbras" of certain Amendments (as the Griswald case found with the 1st Amendment, or as Boyd found with the 4th and 5th), the 9th Amendment, or the "liberty" clause of the 14th itself.

And you are correct. In order to apply the Bill of Rights to the States, you must apply them through the due process clause of the 14th. However, you may also apply the 14th itself, without regard to the Bill of Rights, as the 14th's "life, liberty.." protection is considered "substantive due process."

Robert,

I did not unthinkingly misunderstand or ignore anything. American courts do not share your view of rights. They haven't shared your view of rights for nearly 200 years now. Consider the latest decision to allow municipalities to "take" your property via eminent domain and give it over to private industry (Wal-mart) as the municipal government sees fit. Do you think Wal-mart has a "property right" in the land you may own or live on? Of course it doesn't, but guess what? The Justices found that right in the 5th Amendment. Guess what else? Roe v. Wade, in all its magnanimity, helped set the course for justices to "find" and "invent" such "rights."

Do I think Wal-mart has a "right" to your property simply because the Supreme Court says it does? Of course not...does that stop that right from being enforced in the United States today? Of course not..



Just to reitterate my point: The Roe v. Wade decision that many of you are so fond of is actually in accord with the recent Supreme Court decision that allows government "takings" of private property. There is nothing in the Bill of Rights that allows property to be taken for "private" purposes without just compensation...that "right" is made up...its "implied" from the 5th Amendment language that "public" property may be taken. Allowing the Justices in Roe to pull rabbits out of the hat is justification for them pulling other rabbits out of other hats. This is PRECISELY why Roe is a "terrible" decision.
(Edited by Lyman Bradford
on 7/18, 9:42am)


Post 33

Monday, July 18, 2005 - 2:50pmSanction this postReply
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Hi Lyman,

 

Blackmun's discussion of the various ways to get at the penumbra is, I think, just his way of saying that there's more than enough reason to constitutionally restrict states from violating privacy.

 

I suppose I disagree with your opposition to the "penumbras doctrine" and your opinion of Kelo v. City of New London, the most recent “takings” case. The Fifth Amendment says that “[P]rivate property [shall not] be taken for public use, without just compensation.” A big question in Kelo was whether “public use” included takeover by another private enterprise in order to economically enrich the public. The Court sort of punted by giving local governments discretion in determining what constitutes “public use,” but had the Court explicitly stated that “public use” includes economic and tax enrichment via another private enterprise, I think it would’ve been a reasonable interpretation of “public use.” This is not to say that I would like such an outcome. Shame on the framers for putting in vague terms like “public use.” Perhaps some would even say shame on the framers for including the constitutional “takings” provision. But for now, we’re stuck with that provision, and we’re stuck with the vagueness of “public use.”

 

Now some think that “public use” should be restricted to whatever the framers considered to be a “public use” back in 1791. I reject this view because that’s not how concepts, including “public use,” work. Concepts are open-ended, penumbral. New referents to a concept can pop up 200 years after people identify the concept. I think it’d be wrong to ignore such referents just because the concept’s originator is unaware of them or just because they didn’t exist. That resembles the fallacy of arrested knowledge.

 

Further, I think treating concepts as open-ended, and allowed for penumbral rights, was clearly in the intent of the framers. Otherwise, I wouldn’t know what the 9th amendment is for. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This basically means that just because a right isn’t explicated in the Constitution, that doesn’t mean the government can then trample it.

 

But how can we tell whether something is properly a referent to “public use”? Well, that’s what judicial review is for. The Justices look for trends in precedents, policies, and principles that have run through our history. Allowing anyone, not just the Justices, to interpret a statute poses a risk for those subject to it. But in my view, we risk something even greater if we forbid such interpretation.  

 

Which bring us back to Roe. “Liberty” (from the 14th) and “the right of people peaceably to assemble” (from the 1st) are concepts. They shouldn’t be treated as though they refer to a set number of instances. Instead, they are open-ended, and they allow for the penumbra. Whether either of those concepts includes abortion is indeed up for debate. But I think the Court was reasonable in finding that abortion was indeed a referent to at least one of those concepts. They sifted through legal policy, precedents, and principles in some detail.

 

That said, I still don’t see why Roe is ARI’s last shining moment of judicial review. The trimester bit and the entertaining of state interests bit seem rather cut from whole cloth.

 

Jordan


Post 34

Tuesday, July 19, 2005 - 11:38amSanction this postReply
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Unfortunately for me, the Court agrees with your view of the Constitution and of penumbrial rights. Bush will appoint 1, possibly 2 new conservative justices to the Supreme Court before his term expires. It will be interesting to see what rights a conservative court finds in the flexible, ever expanding, penumbrial abyss that our founding fathers apparently intended our "constitution" to be. To me, the whole purpose of having a constitution is to clearly delineate what is and is not part of the contract. I guess our framers took the easy road by drafting a contract without terms. How simple we are.

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