In Which I Stay Way The F**k Away From Abortion
Don't want to start any arguments here, but I did see that today is the anniversary of Roe v. Wade, and I realized, upon following a link, that I'd never read the decision itself. I still haven't read the whole thing (220+ pages), but I've read part of it now, particularly the part on the "right to privacy". (I've mentioned before that I have a weird opinion on abortion -- I support it, within reason, but don't think the Constitution includes a mysterious "right to privacy".) Here's part of what the decision said about privacy (section VIII of the main opinion, for those who want to read the whole thing):
"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. [Lots of precedents go here]
"...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..."
Interesting. Just for fun, here's what the 9th and 14th Amendments say:
Ninth: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Applicable section of the Fourteenth: "1. 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."
Yep, just like the opinion says above, the Constitution doesn't mention privacy specifically...
posted by Bubblehead at 8:47 AM
3 Comments:
And this is why Madison was opposed to the specific enumeration of rights. He felt that as soon as you wrote some of them down you'd have people claiming that some right didn't exist because it wasn't enumerated. That's what the 9th is all about.
1/22/2006 10:19 PM
Madison may have had a point; but since we did start writing them down, with the Bill of Rights, I think that one has to consider which ones are written down, and which aren't.
1/22/2006 10:23 PM
Bubblehead: You'd have a point if you thought that government created rights. I don't. I believe that rights exists outside of government and that its role is to guarantee those rights. Thus it doesn't matter what rights are written down, just if they exist.
ninme: The role of courts is to interpret the law, which includes both the Constitution and precedent (as well as the laws passed by legislature). The only time primacy becomes an issue is when there is a contradiction within the law. Thus in any given case judges are supposed to interpret A, B, C, and D as they apply to the case. Unless they decide that D contradicts A in which case D goes away and only A, B, and C are considered.
1/23/2006 3:35 PM
Post a Comment
<< Home