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View Diary: The Power Of The State: Privacy Rights and Economic Rights (296 comments)

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  •  Griswold and Roe (none)
    There were avenues to decide Griswold on First Amendment grounds, either free speech or even establishment grounds.  If it had to be decided on other grounds, it should have been decided as narrowly as possible, without proclaiming some broad and ill-defined "right to privacy."

    No more Melissa Beans!

    by Paleo on Thu Nov 03, 2005 at 11:36:09 AM PST

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    •  That doesn't answer (none)
      whether or not you think ROE was wrongly decided. You only addressed Griswold in your answer. Clarity?

      When you're going through hell, keep going. -- Winston Churchill

      by valleycat on Thu Nov 03, 2005 at 11:57:52 AM PST

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      •  Roe (none)
        Yes, although I am pro-choice, as I said above, I believe Roe was wrongly decided as a matter of constitutional law.

        No more Melissa Beans!

        by Paleo on Thu Nov 03, 2005 at 12:04:05 PM PST

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        •  another question (none)
          You gave a somewhat clear explanation of what other ways Griswold could have been successfully argued, privacy issue aside. In your opinion, are there any for Roe? Or does it simply not have a leg to stand on (again, in your opinion) ?

          When you're going through hell, keep going. -- Winston Churchill

          by valleycat on Thu Nov 03, 2005 at 12:16:32 PM PST

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          •  Roe (none)
            I just don't believe that the right to an abortion can be found in any reasonable interpretation of the Constitution.  It is merely a right invented by the Justices, totally unmoored from the text, or implicit within the text, of the document.

            No more Melissa Beans!

            by Paleo on Thu Nov 03, 2005 at 12:30:21 PM PST

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            •  If you don't see a "right" of privacy... (none)
               where to you see a grant of power for the government to make reproductive decisions?

               Remember that the Constitution is a grant of power from the people...not from the government to the people.

               Many(not saying you specifically) who say that they can't find this or that right, rarely discuss where they find that the government has been granted the authority to act in that particular cases.

               The two concepts do go together.

              "Most people would sooner die than think; in fact, they do so."

              by sebastianguy99 on Thu Nov 03, 2005 at 12:38:17 PM PST

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              •  Grant of power (none)
                The grant of power comes from the people to their elected representatives, through the electoral process.  

                No more Melissa Beans!

                by Paleo on Thu Nov 03, 2005 at 12:56:44 PM PST

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                •  That's a description of the reublican process (none)
                   it is not an answer to my question. Where in the Constitution does it grant the federal or state government authority to make reproductive choices for women?

                   It is true that we elect Legislatures to govern. They can only act(govern), however, in the areas and in the manner prescribed in the Constitution.

                   Reading the Constitution literally means that we not only look at if a certain right is there, but also if governments can act.

                  "Most people would sooner die than think; in fact, they do so."

                  by sebastianguy99 on Thu Nov 03, 2005 at 01:12:48 PM PST

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                  •  Necessary and proper clause (none)
                    At least with respect to Congress, it has the power under the Constitution to make all laws which are "necessary and proper."  I'm sure the individual states have similar provisions.

                    No more Melissa Beans!

                    by Paleo on Thu Nov 03, 2005 at 01:21:00 PM PST

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                    •  Uh..Nope (none)
                       the Necessary and Proper Clause applies to only those ares where..yes, the government(in this case the Federal one) has been delegated authority to act...the enumerated powers. It is therefore, a limitation on Congressional power, not a grant of authority.

                       So those who say that there is no right of privacy in the Constitution, can't find the authority for governement to make reproductive decisions either...if we are reading the documenyt literally that is.

                       

                      "Most people would sooner die than think; in fact, they do so."

                      by sebastianguy99 on Thu Nov 03, 2005 at 01:32:22 PM PST

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                      •  Re: (none)
                        You can say that about a whole range of legislation.  The framers did not delegate what particular legislation was necessary and proper and what wasn't.  It's not that the right to abortion isn't explicitly mentioned in the text, it can't be derived from anything in the text, unless you subscribe to the substantive due process doctrine, which I don't, or believe the Ninth Amendment permits judges, rather than the people, to create such rights, also which I don't.

                        No more Melissa Beans!

                        by Paleo on Thu Nov 03, 2005 at 01:44:44 PM PST

                        [ Parent ]

                        •  The Founders Didn't Delegate Anything.. (4.00)
                          ..the People Did!! The writers of the document held no such authority.

                           Rights do not come from the Constitution or the government.They come from the people.

                           Yes there are many areas one could point out that are not explicitly spelled out in the text. But that's the point!

                           If we are going to play the game of literalism when it comes to unenumerated rights, then given the structure of the Constitution, it is intellectually dishonest not to apply the same standard when the government seeks to act.

                           So if one says I see no right in the Constitution, then one must also look to see if there is authority to act in a particular area as well.

                           So the answer to the question I've now asked several times is, "No"...there is no such grant of authority to decide reproductive rights, to the government, within the text of the Constitution.

                          "Most people would sooner die than think; in fact, they do so."

                          by sebastianguy99 on Thu Nov 03, 2005 at 02:13:38 PM PST

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                          •  Re: (none)
                            When courts analyze cases, governments are presumed to have the power to enact the law being challenged.  They have what is known as the "police power."  If someone wants to challenge the right of governments to enact laws regarding reproduction under that power, or under the necessary and proper clause, fine.  But I doubt they'd be successful.

                            No more Melissa Beans!

                            by Paleo on Fri Nov 04, 2005 at 03:27:13 AM PST

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              •  Such power comes from (none)
                State governments. In many instances state governments have been construed to have "all" power except that which is limited by the State and Federal Constitutions. (Not the libertarian view mind you)

                In WA the state's "Police Power" was expanded to include ramming a major league baseball stadium down the people's throats. Nevermind that it was voted down in a prior election

                •  Almost.. (none)
                   don't forget that the 9th and 10th Amendment speak to the powers retained by "the people" as well!

                  "Most people would sooner die than think; in fact, they do so."

                  by sebastianguy99 on Thu Nov 03, 2005 at 01:35:07 PM PST

                  [ Parent ]

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