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Subj: Re: With respect, I disagree...
Posted: Mon May 09, 2022 at 06:42:22 pm EDT (Viewed 161 times)
Reply Subj: Re: With respect, I disagree...
Posted: Mon May 09, 2022 at 05:49:02 pm EDT (Viewed 155 times)
Quote:Sure, but considering there are four or five Amendments that do cover the right to privacy it is something that was considered.
Quote:They enumerated specific ones, but the not quartering soldiers is a privacy thing, the first amednment covers it and so on and so forth. The ones that make some statement on it would be 1, 3, 4 and 9. Then 14. They do not specifically cover the abortion issue but they highlight things like the importance of private ownership of various things including home, beliefs, person and possessions and then life, liberty and pursuit of happiness.
First, it seems clear you're using "privacy" to mean "freedom from interference by the state." This is the definition Roe v. Wade proponents typically apply. I'll run with it.
Quote:Now, the argument you - and other Roe v. Wade proponents - wish to put forward seems to be this: "The Constitution establishes several particular ways in which the state may not interfere with its citizens, so therefore the Constitution may be construed as establishing a general protection of its citizens against interference by the state."
Sure, but I think you missed my point that this line of reasoning predates Roe.
Quote:This is an example of inductive reasoning - arguing from the specific to the general - and as such must be tested against reality. Does the Constitution establish a general protection of its citizens against interference by the state?
In most cases one would assume so. I mean the Constitution is a fairly short document but fairly complex legal matters have been sorted through using the text available and extrapolating. The main difference is who is doing it.
Quote:Well, let's see. Does it protect its citizens from the state's interference with (1) their decision as to how fast to drive their car? - (2) their decision as to whether to fight for the state? - (3) their decision as to whether to contribute financially to the state? - (4) their decision as to whether to drive while drinking alcohol? - (5) their decision as to whether to pay for sex? - (6) their decision as to whether to gamble wherever and whenever they choose? - (7) their decision as to whether to purchase narcotics?
Quote:The answer is no in every case. Why is the answer no? Because the Constitution doesn't list these as protected rights to non-interference.
Except none of this really matters. Even in the rulings in question it has never been ruled that privacy as such is an absolute right.
The question that would be proper is does a person have a Constitutional right to govern their own medical care? It is not explicitly stated anywhere in the Constitution but in most cases it is ruled that a person has a legal and ethical basis for governing their own medical care.
IMO, it falls under that more than anything. Which has been read into the 14th Amendments clause.
Quote:Yet somehow a woman's right to be protected from the state's interference with her decision as to whether to terminate her pregnancy is Constitutionally protected, even though the Constitution doesn't say so.
I would say the right to make your own medical decisions is a different set of rights than speed limits. Which as you know would not have been in the radar of the Constitutions writers. AT least the original ones.
Quote:Understand: I'm not debating whether the Constitution should protect women from this state interference. I'm debating whether it does. I say it doesn't, because it doesn't say so, and in at least seven other instances, not saying so is sufficient to preclude such protection.
And I think that is too literal, but that is what I think and it does not matter.
To me it falls under the general rights to bodily autonomy that would fall under life, liberty and the pursuit of happiness. It hits on all three of those in the 14th Amendment.
One could also it falls under other Amendments. I agree it is not specifically stated, but if we do not consider the right to liberty or life to be Constitutionally protected things than it undercuts the whole notion of the Constitution to me.
All of that said, my personel preference would be to modify the Amendment process to make it easier to pass the things so that Courts would not have to interprut and reinterprut the situation.
I mean Clarence Thomas alone has indicated that women as stated do not have some Constitutional rights that are not enumerated, even though they can easily be read in. The Equal Rights Amendment or something like it could be passed but there are alot of things not specifically said in the Constitution but are included.
Quote:Many of which have been upheld from the SCOTUS in cases ranging from 1923 to present day. So, not particularly novel to the 1973 decision.
Every time SCOTUS did this, they erred.
In your opinion.
However, one also has to square that if such things were the foundation of various rights for going on 60 years than jumping in and saying they were all wrong and pulling the rug out leaves alot of people exposed for fairly petty reasons that amount to "well technically". At least in my view.
In a perfect world these things would be spelled out in Amendments but if left to that I imagine it would be a very long time before gay people could marry or in many cases even interracial couples as you would be waiting for the people to figure out the "right thing" which may or may not ever happen.
And in principle it is the Court's job to protect the population equivalently, even if they have not always done it even when it is explicitly stated. Like the marriage example, to me marriage is not really covered at all in the Constitution but given that the federal and state governments give numerous benefits to the status it seemed clear to me that not giving those to others is a violation under a couple of different Amendments. Even if the privacy one, or the umbrella of it was sort of used as the framework for it. If it were merely a religious institution than it would not necessitate anything of the kind. IMO.
Let's just say that I still do not really agree with your reasoning but will agree that it is the simplest way to go about things but to me it is also the one with the most danger to it. As some areas of the Constitution are vague by nature.
For instantce one would think Congress's power to regulate interstate commerce is pretty clear, but not always. Various members of the current court have happily limited that power even when it is clear when it is spelled out.
Other areas needing details would be counting voters and things like citizenship. It seems clear, but there are movements that try to push things like that and may well succeed eventually regardless of the text or logical reasoning from the text in the first place.
To me, the medical right to make your own choices unless it impacts others directly seems like it is something protected under the 14th Amendment's text and potentially a few others even though things like medicine and medical body autonomy are only alluded to at best.
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