Alarming News

January 30, 2006

Question

The Republican Majority for Choice has released a statement supporting Lincoln Chaffee’s decision to vote against confirming Alito.

Here is the comment:

The Republican Majority for Choice is proud to stand with Senator Lincoln Chafee in opposition to the confirmation of Judge Samuel Alito to the Supreme Court. We strongly agree with Senator Chafee that Judge Alito’s consistently anti-choice record simply cannot be ignored. Furthermore, after Judge Alito continually side-stepped the issue of whether or not the right to privacy in the Constitution extends to reproductive choice….

Look at that last line. Alito has refused to answer whether ‘the right to privacy in the Constitution extends to reproductive choice’. Now, I’m no Constitutional scholar or anything so I have to ask: has the (actually nonexistent) ‘right to privacy in the Constitution’ ever been used to defend anything other than abortion?

Posted by Karol at 02:24 PM |
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Comments

yes.

Posted by: Not Dawn Summers at January 30, 2006 at 2:54 pm

Yes. It protects your right to buy and use contraception.

Posted by: Allah at January 30, 2006 at 2:55 pm

But the reality is that the “right to privacy” advocates prey on the stupidity of their supporters, drawing strength from the fact that none of these people have actually read the Constitution.

Posted by: Dorian Davis at January 30, 2006 at 3:11 pm

I prefer the presumption of liberty arguments from Kennedy and others concerning abortion, contraception, and other personal sexual issues.

Posted by: J.Kende at January 30, 2006 at 3:16 pm

But the Constitution is a contract, and assumptions are not applicable to the Constitution.

Posted by: Dorian Davis at January 30, 2006 at 3:32 pm

sodomy case in TX?

Posted by: Scott Sala at January 30, 2006 at 3:33 pm

But a presumption of liberty is not a codified protection of that liberty, unlike, say, freedom of speech or religion.
If it’s not there, then people can presume all the liberties they want, but that shouldn’t stop laws restricting them.

Posted by: Jay at January 30, 2006 at 3:34 pm

It’s not the stupidity of our supporters on which we draw strength – it’s the language of the Constitution:
(1) Start with the fourteenth amendment:
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.
So the constituion protects freedom, liberty, privileges, which brings us to:
(2) freedom = 2 a : a political right b : FRANCHISE, PRIVILEGE synonyms FREEDOM, LIBERTY, LICENSE mean the power or condition of acting without compulsion. FREEDOM has a broad range of application from total absence of restraint to merely a sense of not being unduly hampered or frustrated .
Of course, privacy is simply (3) freedom from unauthorized intrusion (m-w.com)
So, if we take what the language in the Constitution actually means (and not what other folks thought it meant 100 years ago) and what privacy actually means, there’s a legitimate argument that privacy interests are protected from unnecessary govermental interference by virtue of the due process language (clearly, there are rather profound differences of opinion on this point, but the argument and basis is there).
In any event, this is why (if the previous comment gets approved) I wrote the privacy rights are all inherently negative. They act to restrict government from undue interference – they don’t necessarily prevent governmental interference (e.g., you need a prescription for birth control – the state’s interest in protecting the unborn must be taken into account in determining whether a woman can have access to an abortion).

Posted by: Alceste at January 30, 2006 at 3:40 pm

Alceste–
Explain the “due process of law” that takes place before a 15-year-old named Tiffany “deprives” her 8-month-old baby of “life.”

Posted by: Dorian Davis at January 30, 2006 at 3:45 pm

Egads – apologies to Karol for the unduly long comment – wasn’t trying to pull a Don Myers but didn’t check to see how long it ended up being before hitting post (the perils of conference-call commenting…)

Posted by: Alceste at January 30, 2006 at 3:46 pm

DD: In virtually every state, an 8-month old baby/state cannot be aborted except in the case of a medical emergency. Why? Because the states passed laws (laws which are clearly constitutional under the privacy precedent) that prohibited these abortions.
A state’s interest in protecting the life of a baby/fetus that is 8-months old is compellingly high. Hence, a woman’s access to abortion at that late stage of a pregnancy is not unduly burdened when access to an abortion is denied in the absence of a medical emergency (i.e., the state does not deprive the woman of due process when it prevents her from aborting her baby/fetus).

Posted by: Alceste at January 30, 2006 at 3:56 pm

Alceste–
I’m in complete agreement that a state has the right to protect the life of an 8-month-old fetus. Now, what about a 7-month-and-29-day-old fetus? Is there a “state right” to protect that?

Posted by: Dorian Davis at January 30, 2006 at 3:59 pm

nor shall any state deprive any person of life, liberty, or property, without due process of law;

In other words, a state may deprive a person of life, liberty, or property, provided that it first provides him or her with “due process of law.” Unless, of course, the liberty in question is a woman’s liberty to have her doctor to stick a fork in her baby’s head. Then the state can’t do shit, no matter how much process it provides her with. Good job, Alceste.
Incidentally, here’s how Justice Kennedy defined the right to privacy in the Texas sodomy case Scott mentioned. Try to imagine what this language wouldn’t encompass:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Good job, Justice Kennedy.
What the right to privacy is really about is minimizing abstinence as an option in sexual behavior. Thinking about having sex but worried about pregnancy? Don’t worry; you have an unwritten constitutional right to buy condoms. And if you choose not to use condoms or the condom breaks? Don’t worry; you have an unwritten constitutional right to the fork-in-the-head option. Our culture, what’s left of it.

Posted by: Allah at January 30, 2006 at 4:03 pm

While we in the gay community appreciate Justice Kennedy’s sentiment, we help but notice that decriminalizing “private sexual conduct” is a precedent wide enough for polygamy to walk through.

Posted by: Dorian Davis at January 30, 2006 at 4:08 pm

Polygamy is a fait accompli. Canada’s DOJ recently commissioned a study which recommended that polygamy be legalized. SCOTUS will follow suit in a few years.
How about two people fucking in a public park? Sure, kids might see them, but they can look away, right? And what’s worse: kids being exposed to public sex, or the state “demeaning” the “existence” of the two people fucking by arresting them? Justice Kennedy knows the answer.
Exercise your constitutional rights: Be the biggest whore you can be!

Posted by: Allah at January 30, 2006 at 4:18 pm

Isn’t polygamy more closely tied to the gay marriage construct? I don’t think I should be put in jail for having three women, men or some other combination in my bed. I shouldn’t, however, feel as if I am entitled to the marriage benefits conferred by the state for this relationship simply because I can’t be put in jail for the relationship.
As for state interests, it’s not a question of whether the state has the right to assert its interest in protecting a fetus. The state’s interest must always be considered at every point in the pregnancy – not just during the late term, but at the earliest stages of the pregnancy too.
I think we’d agree that there is clearly a point at which the state’s interest in protecting the health of both the fetus and the mother overrides a woman’s interest in obtaining an abortion. I’d argue that there is also a point at which the woman’s interests (as defined) clearly outweigh those of the state.
But where is the cutoff? I don’t know. What’s left is a large amount of uncertaintly, both as to how these interests should be balanced and who should do the balancing. (Setting trimesters as a bright line test was stupid and rejected accordingly – on the other hand, as stupid as it was, it did work).
I think we would agree that, in an ideal world, the legislature would be the most appropriate forum for the balancing (or, for that matter, any balancing required under the Constitution once the Court interprets the text of the Constitution to determine what interests are protected by it). But it’s unclear to me whether legislatures actually do any balancing on their own (or, instead, if they deliberately fail to take into account the woman’s privacy interests knowing that courts will take action – providing cover from abortion opponents – who know that their legislature voted for the restriction but the courts are evil – and from abortion –choice advocates – who don’t get more involved at the legislative level because they can always look to the courts).

Posted by: Alceste at January 30, 2006 at 4:45 pm

Most people have enough problems getting one person into their bed, let alone three. lol!

Posted by: ll at January 30, 2006 at 6:57 pm

“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however[] 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. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment[]; the Fourth and Fifth Amendments[]; in the penumbras of the Bill of Rights[]; in the Ninth Amendment[]; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment[]“.
This is the definition of judicial activism.
Transation: “No, well, it’s not actually in the Constitution, or any of the Amendments to the Constitution, but if you look at these 4 amendments, and part of this one amendment over here, and you read them all like they’re one Amendment (and of course ignore all the other amendments), well: there just has to be an implied right of privacy.”
Look, if you want a right of privacy, advocate for it, get an Amendment to the Constitution written in there.
There are only 27 “rights” amended to the constitution. Our founding fathers and their progeny were very selective about what our constitutional “rights” were. Privacy wasn’t there, precisely because it’s such a broad term. Decisions about privacy were left to the states.
So don’t invent a constitutional right that doesn’t exist just so you justify abortions.

Posted by: Sean at January 30, 2006 at 11:03 pm

Abortion does not need to be justified via a constitutional amendment. Roe vs Wade took care of that. OK yes from what i know the court went too far and legislated on that issue as opposed to interpreting the law as it was in 1973 but it is now law.
Dorian. You raised the question of a 7 minth and 29 day old baby. Following this train of thought.
1. Age of consent. What makes a guy/girl of 17 years 364 days too immature to engage in intercourse?
2.Driving. See above for 15 years 364 days.
3. Right to vote.
4. Drinking Age.
5. Owning a gun.
6. Watching R rated movies.
8 months as a limit for abortions may seem like a stupid and arbitrary number (personally I agree with you that it is) but as the right exists and there is a genuine moral argument against late term abortions a line has to be drawn somewhere.
Can the 10th amendment be used. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”.

Posted by: Nick Saunders at January 31, 2006 at 4:38 am

Uh, sure Nick, but Roe v. Wade specifically took that power away from the states. Pre-Roe, several states had legalized abortion.

Posted by: Karol at January 31, 2006 at 5:30 am

Ah. Cheers for that. I knew that seperation of powers was a problem for Roe as the court infinged upon the legislative rights of the states.
And I was thinking primarily of “the people” with the 10th Amendment reference.
Wuick question just out of interest. Out of all the pro lifers on here how many are pro death penalty?

Posted by: Nick at January 31, 2006 at 6:45 am

Nick–
I completely agree.
Not only is there no precise age at which a fetus becomes a baby, but there is no precise age at which we become mature enough to drive, to have sex, or to see an R-rated movie. These issues need to be re-evaluated; I certainly don’t support the arbitrarily assigned age restrictions on those activities, consistent with the fact that I don’t support arbitrarily assigned hogwash about babies not feeling anything until the eighth month.

Posted by: Dorian Davis at January 31, 2006 at 8:11 am

8th month? You people are taking away a whole Court-sanctioned month of fetus killing time. Do the math, please.
Nick – That is a horrible argument. Nobody disputes that the legislature has the right to set arbitrary age cutoffs. Even lefties like me understand that it is a trickier question for the Courts to do so. And pointing to Roe v. Wade to support the right to an abortion is what is known in logic circles as “begging the question.” Please, if you aren’t going to help our side, don’t half-ass it.
Also, in the course of unfinding a right to privacy in the Constitution because the word “privacy” never appears, I’d like you all to please reread the 11th Amendment and explain modern sovereign immunity as applied to the States. (ie, why can’t I sue New York in Federal Court without NY’s permission?)

Posted by: Charles at January 31, 2006 at 10:25 am

I don’t support arbitrarily assigned hogwash about babies not feeling anything until the eighth month.
The thing is, this hogwash (no argument at all there) isn’t the law anymore. Casey modified/overruled the portion of Roe that required the trimester analysis. Now, it’s murky balancing that courts probably shouldn’t be doing.

Posted by: Alceste at January 31, 2006 at 10:28 am

In response to Sean’s point – does the Constitution contain even that many affirmative rights? Or is it constructed as a series of (1) affirmative powers of the federal government and (2) negative restraints on the federal (and state) governments? According to Madison (he who wrote the thing), the Bill of Rights was not written to list every right individuals possessed, but it instead served to ensure the populace of the limitations on the power of the federal government.*
And in response to any future question regarding the role of the framer’s intent in Constitutional interpretation: I don’t think we should rely on it as governing or conclusive. I do think it helps us interpret the plain meaning of the terms used in the Constitution. In this case, as a factual matter, it undermines Sean’s assertion that we only have the rights that are specifically enumerated – it does not, however, help us determine what rights are protected. In this case, however, the common law right to privacy was recognized long before any Constitution was ever enacted. In the absence of a provision taking away privacy rights (or stating that we only possess those rights which are specifically enumerated), I would argue that the judicially activist position here is the one that denies that privacy rights are protected.
*”But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.”

Posted by: Alceste at January 31, 2006 at 10:45 am

I agree with Alceste last comment. Privacy rights existed before the constitution and because in our new country of freedom and liberty it’s implied and common sence that we would continue to have privacy rights so it was not implicitly written into the Constition.

Posted by: PAUL at January 31, 2006 at 1:34 pm

The point of my question was that you can’t question the 8 month time limit (gather thats no longer in force) and invoke the date minus one day in an anti roe argument.
I am pro choice politically but from what I know about Roe vs Wade the court went too far. Also I didn’t know the 8 month limit wasn’t in force anymore. Being Pro Choice doesn’t mean agreeing with every aspect of it.
As for a right to privacy I don’t know the US constitution well enough to argue whether the right exists. I believe it SHOULD do and from my limited knowledge of it I THINK it is there. But its not specifically mentioned.

Posted by: Nick at January 31, 2006 at 2:15 pm

Nick, If you’re interested, here’s the 1992 case explicitly rejecting the trimester (7 month) framework (and disavowing much of the earlier abortion jurisprudence) – abortion restrictions now turn on viability – i.e., “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.”
In light of medical advances, the Court recognized that viability now takes place earlier in a pregnancy and held that a state may ban all abortions after a fetus reaches viability. When viability occurs is left to the medical community (and, unlike Roe, not to the courts).

Posted by: Alceste at January 31, 2006 at 2:43 pm

Of course “the medical community” essentially means “on a case by case basis, as determined by the courts.” I doubt that a state law that based, say, a 6 month cutoff on findings about viability grounded in medical journals would pass muster under Casey.

Posted by: Charles at January 31, 2006 at 5:10 pm

If there were truly a consensus of medical opinion (and not simply the findings of a few groups), I’m not so sure that a 6 month ban wouldn’t pass muster… Then again, determining the actual consensus really is the role of a legislature, the courts really should be there only to make sure the legislatures are actually doing it…

Posted by: Alceste at January 31, 2006 at 5:14 pm

Alceste,
By following your logic, anything and everything is Constitutional unless SPECIFICALLY laid out as such in an Amendment restriction. Every local act can be justified on a federal level, if not spelled out specifically as a no-no.
You can copulate with a farm animal on your front lawn because there is no specific restriction against such in the constitution.
You see, the framers talked about the right of owning property, and we have this wonderful implied right of privacy, which means we can do ANYTHING WE WANT on our own property, so clearly, the framers intended that my rights violate some beast of burden for all in town to see should be protected.
So I buy a property across from an elementary school, build a house full of glass, and host orgies every day around 2:30 PM. No state or community has the right to violate my imaginary constitutional right to privacy.
You can talk all you want in the abstract, but there are real world implications.
The point of the US Constitution and it’s Amendments was to say:
(1) any citizen of the US is guaranteed these specific rights, that we’re laying out here in plan, simple, backwoods terms.
(2) the federal government cannot do this, that, or the other thing, as we’re laying out here in plan, simple, backwoods terms.
(3) the States are left to govern the remainder.
(4) If your state doesn’t prohibit something, and we don’t prohibit it, we have to assume that it’s all cool.
Localities and states had the right and the responsibility to judge and govern local laws. If some restricted abortion, that’s the way it was meant to be.

Posted by: Sean at January 31, 2006 at 7:02 pm

Sean: I was simply writing that the Constitution did not remove any rights that we already possessed – privacy was one of them. Moreover, we have the text of the 14th amendment above, which explicitly protects liberty interests from governmental interference.
I ask you, where does the constitution talk about a right to own property? All I see is the Fifth (and 14th) Amendment: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” – here, as with virtually every other portion of the constitution, the right is stated in terms of a negative restriction on power…
And each of your privacy examples points to explicitly non-private, outrageous conduct – I understand you don’t take any argument with which you disagree seriously, but you offer very little that would in any way incline someone to take you seriously…
In that vein, there are sincere arguments that any privacy rights that may be protected do not include access to abortion – the killing of a fetus necessarily involves moral questions quite different (and much more profound) than any other area of privacy law – but the privacy law is there and attempting to argue as if it does not exist is simply unproductive…

Posted by: Alceste at January 31, 2006 at 10:53 pm

Most laws aren’t in the constitution at all.

Posted by: PAUL at January 31, 2006 at 11:26 pm

Paul, the word is ‘rights’, not ‘laws’.

Posted by: Karol at January 31, 2006 at 11:45 pm
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