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Subj: Re: Looks like Roe vs Wade is getting overturned
Posted: Sun May 08, 2022 at 07:52:35 am EDT (Viewed 213 times)
Reply Subj: Re: Looks like Roe vs Wade is getting overturned
Posted: Sat May 07, 2022 at 04:32:37 pm EDT (Viewed 217 times)
Quote:That is not what Roe v. Wade did.
Quote:It did not give the right to have an abortion, it ruled that the right was already in the constitution, under the right to privacy.
Ruling that something is true does not make it true. A ruling can be false, and in this case, it was. The right to privacy isn't there. Here are the two Amendments that have been proposed as asserting that right. The first is this one:
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.
Read that paragraph with an honest eye toward identifying what the Framers had in mind, and you'll conclude they were intent on protecting American citizens from illegal search and seizure on the part of their government. Nothing more. Which makes sense, because the main fear at the time of ratification was federal government overreach.
Here's the second:
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.
Where is any mention of anything like privacy? (There is more to say on this Amendment, which I'll get to in a moment, but for now, please just focus on privacy.) What this paragraph does is protect American citizens from (a) being killed, imprisoned, enslaved, or robbed by their state government without due process of law; or (b) from having any of their Constitutional rights violated by their state government; or (c) from being protected differently from anyone else under the laws of their state. What I've labeled "(a)" is not about privacy. What I've labeled "(b)" would only be about privacy if privacy was protected elsewhere in the Constitution, which it isn't. What I've labeled "(c)" would only be about privacy if there were some special group in America which historically had enjoyed a right to privacy, and such was not the case until Roe vs. Wade invented this right on behalf of women - and we can't use Roe vs. Wade to justify Roe vs. Wade.
There is no right to privacy in the Constitution. Not yet. If we want one - and I think we do - we need to put it in there, via the Amendment process.
Now, as I promised, there is more to say on Amendment XIV. It prohibits the states from enslaving their citizens without due process of law. One could argue that preventing a woman from getting an abortion is enslavement. THAT is the right argument to pursue. Not some nonsense about privacy. However, we need to clarify something. The paragraph only prohibits the states from enslaving someone without due process of law. This implies that if the state enacted a law through its legislature that laid out a formal process of when and how a person could be enslaved, Amendment XIV would be satisfied. HOWEVER! The prior Amendment precludes that!
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
So there you go. Argue that prohibiting abortion is enslavement. You could win the debate.
But for some reason, Roe vs. Wade didn't take that approach. Maybe because a reading like that would also prohibit military conscription. If you can't tell a woman she has to have a baby, because that would be involuntary servitude, then you can't tell a man he has to go to war and maybe die, since that, too, would be involuntary servitude. It's that pesky "equal protection of the laws" provision in Amendment IV (see above). Now of course you could distinguish between the two in the Constitution, but you would have to actually write that in. You would have to do an Amendment that clarifies your intent.
And make no mistake: the federal government will not surrender its power to conscript military troops at will.
Quote:The Supreme Court doe not give rights, it determines what rights already exist. They have done that ever since they told us that is what they do in 1803.
And they can err. When they err, they have in effect created a right out of thin air.
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