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View Diary: The Supreme Court Bought 3-4 Years Today (64 comments)

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  •  I'm not sure that I disagree with her. (1+ / 0-)
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    The Roe court went to a strange place with the implied right to privacy - the right to privacy is a great thing and there is reasonable suggestion that it can be found in the 4th Amendment, but to find an amorphous right to privacy as a "fundamental right" within due process jurisprudence, rather than an explicit Constitutional right?  It's a difficult opinion, it really is, and it did reframe the debate.  I stand to be corrected but I am not aware of another major Constitutional right that is not sourced from the text of the document (Bush v. Gore sure comes close - con law profs and BarBri lecturers can't talk about the 14th and 5th Amendment right for people to have their ballots counted and recounted with the same rules within a state without cracking a smile).

    Roe (and the Casey quasi-backslide) can stop states from banning abortions, but they are inadequate tools to stop these TRAP laws and other periphery attacks on abortion rights - to do that, we'll need to win the underlying ideological battle.  As the slow generational secularization of America continues, we will.  I have no doubt about that.  But it's never been a smooth ride and never will be.

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Wed Jun 26, 2013 at 10:29:21 PM PDT

    [ Parent ]

    •  Goldberg concurrence in _Griswold_ is compellling (3+ / 0-)

      I agree that the Supreme Court's majority rulings in Griswold, Eisenstadt, and Roe were... weird.  They didn't have to be, though.

      There is a very, very clear line of argument from the Goldberg concurrence in Griswold, and I think it is completely compelling.  It is short, and it is available online; read the whole thing.  Goldberg wasn't a lawyer by trade and wrote much more down-to-earth opinions than most Supreme Court "Justices".

      It is based in the Ninth Amendment.  The Ninth Amendment is a rule of construction, stating, in so many words, that people have rights even if those rights were considered so obvious that they were not written down.

       I have researched the history of the Bill of Rights.  The Ninth Amendment was placed in the Bill of Rights precisely because the Federalists and Anti-Federalists both feared that the government would claim the power to trample on any rights not specifically enumerated.  In fact, they were proven to be correct and the government has done exactly that, repeatedly.  The Founders were coming from a "natural law" perspective, under which people have inherent rights and the government merely recognizes them (or violates them).

      Unfortunately, there is a strong strain of hatred for the Ninth Amendment within the court system, and it infected even so-called "liberal" judges, who were afraid to actually stand up and say that people had rights regardless of whether they had been specifically enumerated -- even though this is actually part of the Constitution.  So we were stuck with the messy and confusing opinion from William O. Douglas.

      Only Arthur Goldberg, Earl Warren, and William Brennan were willing to enforce the Constitution as it was written.  Much to most people's surprise, the way the Constitution was written was to say "People have rights even if we didn't list them.  Use your common sense and don't violate them, m'kay, government?"

      Anyway, if you follow the Goldberg line of reasoning, the conclusion in Roe v. Wade makes perfect sense and is quite compelling.  The right to control one's own body has been a fundamental aspect of liberty throughout world history, and is exactly the sort of right under "natural law" contemplated by the writers of the 9th Amendment.  Unfortunately Goldberg was off the Court by the time of Roe v. Wade and so we got another confusing ruling.

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