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Since the New Deal, a fundamental dividing line between liberals and conservatives has been the power that the federal government has over different aspects of the lives of the people. Conservatives believe that, in the realm of privacy rights, the Constitution protects persons ONLY against those specific government actions expressly described in the Constitution (i.e. - the 3rd Amendment's prohibition against forcing the quartering of troops), assuming of course acceptance of the incorporaton doctrine (which posits that the due process clause of the 14th Amendment made the Bill of Rights applicable to the States). Yet knowing such a position is politically untenable, they soft peddle it, trying to separate that view from the issue of a woman's right to choose. Here is a standard view:

I think Griswold was wrongly decided. But it has whatever force a 40-year-old precedent has; it is "good law" in that sense. And it's hard to see how the Supreme Court, even if it were inclined to overturn it, would ever have occasion to revisit it. One sometimes hears pro-choicers, trying to alarm swing voters, say that overturning Roe would put the right to contraception at risk. But I'm not sure how this would work in practice. Let's say the Court backed off a little on abortion, letting states, for example, ban third-trimester abortion. That backing off would embolden states to go further and set up challenges to Roe. The South Dakota legislature might, for example, enact a general ban on abortion and send it up to a Court with more conservative members. And maybe then you'd get an overturning of Roe. But no state legislature anywhere is going to enact a general ban on contraceptives, or a ban on unmarried people buying and using them. The Court won't eliminate the basic "constitutional" right to contraception because that right already has a more secure political footing than the Court's support for it: namely, the people's support for it.

See? He disagrees with Griswold - because he believes there is no right to privacy. But don't worry he says, no one will ever challenge it. Of course, the right to privacy is much more than just a right to contraceptives. It is, as Brandeis famously put it, the right "to be let alone." Conservatives do not believe persons have a right to be let alone protected by the Constitution.

They do believe, however, that persons (and the Supreme Court has defined "persons" to be corporations as well as individuals) have a right to have their property be "let alone." They rail at government interference with "economic rights" in ways that only equal their screeching on the right to choose.

Consider their reaction to the Kelo case, a decision much misunderstood by the Left. While the disdain from the Left was based on the belief that the Kelo decision created an opportunity for corporations to take advantage of the "little guy," the Right saw it a question of economic rights, indeed, as Jack Balkin described it, the creation of substantive due process protection for economic rights.

Liberals of course have a different view. Economic rights are protected through the just compensation clause of the 5th Amendment and the political process. It is our view that the Bill of Rights concentrated on individual rights for a reason, the rights of individuals can be trampled by the majority. Those holding economic rights generally have the wherewithall to defend their interests from majorities in the political process or through other means. And it seems clear that the Framers were correct in their assessment.

It is for this reason that, in many ways, a judicial nominee's views of Griswold and Roe and other individual rights cases is such a focal point -- it is a window to their judicial philosophies. That Scalia and Thomas and the late William Rehnquist were so disdainful of individual rights generally, and privacy rights in particular, provided the evidence needed to understand their views on all manners of issues. Consider their opinions and votes -- their disdain for individuals touches every aspect of their jurisprudence, from statutory interpretation to their weighing of evidence to their views of Congressional and State power to their views of Presidential power.

In many ways, Griswold and Roe are Rohrschach tests. Their answers on these two cases reveals their judicial souls.

Originally posted to Daily Kos on Thu Nov 03, 2005 at 10:29 AM PST.

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Comment Preferences

  •  As always.... (4.00)
    ...your posts are why I come to this place.  Thankks Armando....

    Clark-Warner : The Experience to Lead. The Courage to Unite.

    by alexm on Thu Nov 03, 2005 at 10:27:33 AM PST

  •  If no state legislature would enact (none)
    a ban on contraceptives, does that mean Griswold is fair game for confirmation hearings. I.e. that the judge can't duck it on the grounds that a case raising the issue might come before him. I'd love to hear someone ask Alito whether Griswold was rightly decided at the time (not whether he would uphold it now based on stare decisis).
    •  Or, one could ask if a mandatory abortion (none)
      policy for women who've already had one child, ala China, would pass constitutional muster.
    •  No state? (none)
      When I was a boy, Illinois banned the sale of contraceptives. Condoms were sold "for the prevention of disease only" and abortion was a felony. If the reight wing gets control of the legislaure again, they would turn back the clock.

      I heard four of the last six Repulican primary candidates for the Senate say that the minimum wage was the cause of unemployment and should be abolished. Surely they would ban the pill as well. Just like Ru486.

      •  We cannot forget that many religious (4.00)
        fundamentalists oppose birth control pills because they consider this form of contraception to be the equivalent of abortion (theoretically preventing the implantation of a fertilized egg). This is the reasoning by which some pharmacists refuse to dispense birth control pills. The same reasoning would no doubt apply to IUDs.

        Let's not deceive ourselves. If they could ban contraception, they would.

        •  And Further (none)
          That they would clearly ban all contraceptives for minors of any type, even condoms, because to allow minors to have them would be to encourage sex.  Please don't groan, this is what they believe, believe me, I have been amongst them.
          •  Being amongst them (none)
            Your absolutely right on this. I, too, have been amongst them. In fact, I've heard it explained that the only reason they believe abortion exists is because birth control fails. Their circular logic says that if birth control is abolished, then abortion follows. In fact, abolishing birth control, to hear many of them tell it, is their ultimate goal.
            That isn't shock and awe from the left, it's thier true belief.
            Again, they believe that that as long as birth control exists, abortion HAS to exist, because the public will demand it when their birth control fails.

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

            by valleycat on Thu Nov 03, 2005 at 11:42:00 AM PST

            [ Parent ]

            •  There's not enough of them. (none)

              The real religious nutballs make up 20% of the population at most.  If they overturned Roe vs. Wade, we might see, say, 20 states outlaw abortion.   None of them would outlaw contraception.  There simply aren't enough people (even die-hard Catholics) who seriously are interested in such a measure.

            •  That is interesting (none)
              Because I have some family members or old friends from college that are in fundies churches. They said they actually advocate birth control for married women. It is single women and teens that they oppose birth control. They feel birth control encourages singles to have sex. That is more the hogwash they spin as married women in these fundie churches are often on birth control.

              America was not built on fear. America was built on courage, on imagination and an unbeatable determination to do the job at hand-Harry S. Truman

              by wishingwell on Thu Nov 03, 2005 at 02:12:20 PM PST

              [ Parent ]

        •  Some.... (none)
          But there are still a good many Fundies who use birth control. You are right and make a good point but in talking to some right wing religious people, they use contraception like the pill.
          It depends on the church and how strict they are.

          Actually what is more common among fundies is that they do not want teen girls using contraceptives or single women but advocate strongly that married women can. At least that is what I hear from some fundies over the years that are either relatives or old friends from college, etc.

          America was not built on fear. America was built on courage, on imagination and an unbeatable determination to do the job at hand-Harry S. Truman

          by wishingwell on Thu Nov 03, 2005 at 02:03:58 PM PST

          [ Parent ]

        •  Absolutely. (none)
          Let's not deceive ourselves. If they could ban contraception, they would.

           And lacking the ability to criminalize it's use they will do everything possible to limit it's use by making it more difficult to obtain, destroy attempts to educate about it's use and destroy what little access the poor have to any reproductive healthcare.  This is true of the Catholic heirarchy (see Africa and condom use) as much as it is true of protestant fundamentalists.

          And Armando, btw, this is an excellent PF post....

          "...the definition of a gaffe in Washington is somebody who tells the truth but shouldn't have." Howard Dean

          by colleen on Thu Nov 03, 2005 at 04:01:08 PM PST

          [ Parent ]

      •  To be clear... (none)
        For the sake of argument, I was accepting the conservative comentator's premise that no state would enact such legislation. I don't actually agree with the premise - I know there is a sector of the population that still thinks birth control encourages what they consider immoral behavior.
      •  Can you believe (4.00)
        we're even having this discussion in this day and age?

        What is happening?

        "It's all a bad, bad dream and I'm going to wake up soon."

        by cajay on Thu Nov 03, 2005 at 11:18:11 AM PST

        [ Parent ]

        •  I know (none)
          It boggles the mind. That is another reason I want to read Jimmy Carter's New Book about the Moral Crisis in America: How our Values are Endangered or something to that effect.

          Thank God there are moderate Evangelicals like him and at least 17 pct of the Electorate. I think perhaps we need to recruit the other percentages of Democrat Evangelicals and those who believe as the Carters do..etc.

          America was not built on fear. America was built on courage, on imagination and an unbeatable determination to do the job at hand-Harry S. Truman

          by wishingwell on Thu Nov 03, 2005 at 02:14:40 PM PST

          [ Parent ]

      •  I don't care what he says about (none)
        contraception.  Griswald was decided for married couples. The idea that some states won't go back to a strict interpretation of that law is just wrong.

        Those who can make you believe absurdities, can make you commit atrocities-Voltaire

        by hairspray on Thu Nov 03, 2005 at 04:42:15 PM PST

        [ Parent ]

      •  Illinois? (none)
        I grew up there.  I don't think so.  Not in the 50's, anyway.  But certainly states like Wisconsin, and I also think Maryland and Connecticut outlawed contraceptives.  We used to laugh that if you lived in Illinois you'd go to the state line to buy beer (lower age than Illinois), and if you lived in Wisconsin you'd go there to get condoms.
    •  It's all hogwash anyhow (3.75)
      It doesn't matter if "no state legistlature" would enact it.  Quoting the original post:

      the Court won't eliminate the basic "constitutional" right to contraception because that right already has a more secure political footing than the Court's support for it: namely, the people's support for it.

      The FDA has already halted the approval for OTC sale of the morning after pill which is a form of contraception.  OTC sales are critically important because it's effectiveness drops off quickly over time.  It's not equivalent to RU486 which is a pharmaceutical to cause an abortion.  Yet it's withheld by the FDA because of administration policy in spite of science demonstrating it is safe and effective.

      Did a legistlature impose on this contraceptive?  No.  Remember, the FDA, tomorrow could arbitrarily take any contraceptive off the market.  They could make it arbitrarily harder to get them, etc.  That's why having a legal ground that's based in the constitution is important.  

      --- If trickle down economics worked, Marie Antoinette wouldn't have lost her head

      by sterno on Thu Nov 03, 2005 at 12:09:28 PM PST

      [ Parent ]

  •  Kelo is about the right to be left alone. (none)
    We liberals talk about keeping the government out of our bedrooms.

    That logic should extend to prevent the government from taking the whole damn house and giving it to Wal-Mart.

    •  Disagree (none)
      What I do with my body affects no one but me.

      What I do with my property often affects my neighbors/fellow citizens and is therefore a proper subject of government regulation.

      •  Kelo wasn't about the ability to regulate. (4.00)
        It was about the ability to take someone's home and give it to another private entity.  
        •  Clearly.... (4.00)
          (Snark on....kind of)

          Armando is a traitor to his people who believes that the ethnic cleansing of Spring Valley New York by Orthodox Jews using eminent domain (a la Kelo) to drive out Dominicans and Haitians is Constitutional.

          (Snark off)

          The strawman left didn't misunderstand Kelo. The captive left embraced it, or to use an older metaphor, decided that it might as well lie back and enjoy it.

          Those of us who value ALL of the constitution believe that the government can only interfere with our personal liberty and property to the extent that it serves a legitimate PUBLIC function, and that with regard to property, PUBLIC FUNCTIONS are limited to public buildings and transportation rights of way.

          The unwillingness of the captive left to address the issue notwithstanding, we still believe in the Ninth Amendment that Armando and others are willing to treat as a dead letter or a Borkian ink blot.

          Quite seriously, trying to drive a wedge between Kelo and Griswold is simply shameful, quite aside from being bad constitutional law, and bad reasoning. The fact that prominent constitutional lawyers and Supreme Court Justices have often embraced bad law and bad reasoning does not excuse others who follow their lead.

          •  Kind of uncivil of you there (none)
            Where are the civility police?

            I've been mugged here.

            I need a ruling, can I fire back in kind?

            Kid Oakland, where are you?

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 11:04:04 AM PST

            [ Parent ]

            •  Go For It (none)

              You can snap on the snark or answer the more substantive argument as is your pleasure.

              I ask only that you understand that the admittedly harsh snark is an honest accounting of the real effects of a real usage of the type approved by Kelo, and that if you approve the reading of the law that would allow those effects, you shouldanswer the questions of justice as well as those of law -- because much of what makes us different than the right is that we do view the law as intended to serve justice, rather than as the highest value in and of itself.

              •  Substance (none)
                You asked the Court to NOT defer to a legislative determination on public purpose.

                That is a very bad idea.

                There are political remedies.

                The SCOTUS is Extraordinary.

                by Armando on Thu Nov 03, 2005 at 11:19:02 AM PST

                [ Parent ]

                •  Correct and Incorrect (none)
                  I ask that Public Purpose not turn into the Elastic Clause that eats all property rights.

                  Leaving that to the local legislative determination is a prescription for ethnic cleansing and economic discrimination, a result which is already apparent.

                  Allowing legislative determination of public purpose to trump the equal protection clause on ethnic or economic grounds is a return to the bad old days of states' rights, the only difference is that the people who take advantage of it are northern urban bigots instead of southern rural bigots.

                  Whether that is your intention or not, that is unquestionably the effect.

                  •  Kelo did not (none)
                    do this:

                    Allowing legislative determination of public purpose to trump the equal protection clause on ethnic or economic grounds is a return to the bad old days of states' rights, the only difference is that the people who take advantage of it are northern urban bigots instead of southern rural bigots.

                    It simply did not. And it could not.

                    I recommend you read my response to Paleo in which I quote footnote 4 of Carolene Products.

                    The SCOTUS is Extraordinary.

                    by Armando on Thu Nov 03, 2005 at 11:35:46 AM PST

                    [ Parent ]

                    •  De Jure and De Facto (none)
                      The distinction between the two is more than a bit clear to those of us who have been (un)fortunate enough to experience life both before and after 1964 in both the South and the North.

                      As a matter of paper law, the footnote you cite supports your case.

                      But anyone who lives in the real world knows that paper law has very little to do with the facts on the ground, particularly as regards 14th Amendment issues in America. While the roots of the 14th Amendment are most certainly in the systematic mistreatment of African-Americans in the South, in factual practice, we have arrived at a dominant cultural shibboleth that, by definition, only white protestant southerners can be racists or commit acts that systematically violate the Fourteenth Amendment rights of another ethnic or economic group, or that, alternately, the only protected class that can be considered under the Fourteenth Amendment is African-Americans.

                      This renders the footnote you have cited little more than paper law, or if you prefer, a tissue thin cover that, in the case of eminent domain, masks a systematic abuse of property rights that discriminates on the basis of both race and economic status. This is plain as day in the megaprojects of Robert Moses that destroyed the Bronx, in Bruce Ratner's current plans to redevelop Brooklyn around a Frank Gehry basketball arena, in the taking of Chavez Ravine for Dodger Stadium, and back and forth and on and on.

                      However you may comfort yourself with the fig-leaf of your footnote, in this instance, your romance with THAT letter of the law is just the sort of sophistry in the face of the facts that you yourself often decry in our mutual opponents on the right.

                •  That leads us back to simple majoritarianism. (none)
                  Some deference is appropriate, but there are limits.
            •  oh that I lived to see this day! (none)
              Armando (even in jest) complaining of incivility.
              •  A Complaint (none)
                about the complaints against me.

                The fact is this is precisely the type of comment I fire back at, and for which people comlan when I do.

                I honestly believe it is unbelievably unfair.

                I have taken to calling for the civility police when I get hit with these.

                Stupid I know, but makes me feel better.

                The SCOTUS is Extraordinary.

                by Armando on Thu Nov 03, 2005 at 11:17:34 AM PST

                [ Parent ]

          •  Thank you... (none)
            Glad I wasn't the only one irked off about that. You said it much better than I.
        •  I know (none)
          I thought you were arguing more generally about certain property rights being equally integral to personal freedom as rights to sexual/reproductive freedom.
    •  Not the same... (none)

      They were paid just compensation for their property. Will the state pay my part of child support after it bans birth control?

      Seriously, the problem with the complaints against Kely goes something like this (just one angle, mind you).

      First of all, nothing was taken. People pay what are called "property taxes", on the value of their homes. So, lets say you claim your home is worth $100,000 dollars, and you pay property taxes on that. Now, attaching a price to something is really the same as saying that you wouldn't care about whether you had the money, or the thing itself, this is the textbook definition of price. So if wallmart offers you $100,001 for your house, presumably, you would want to take it.

      If you don't want to take it, then you're claiming that your house is worth more than $100,000, but you already claimed that your house was worth only $100,000 for tax purposes, so clearly you were lying then, or you're lying now, which is it? The state then uses eminent domain to force you to sell for what you told them the value of your house is. If you don't want to be EDed, then you should declare the value of your house high enough that you wouldn't mind taking the money, and then pay the taxes on that ammount, and you're safe.

      It seems to me that a person might be able to get away from having their property claimed by eminent domain if and only if they are willing to claim that they have been committing tax fraud in the past. Not a very appetizing option, but I could see how that would at least be logically consistent.

      To claim to the state "my house is worth $X, so I'll pay you 2% of X in taxes" and then claim to someone else that "my house is worth $Y > $X, so you have to pay me at least that much to get it" seems logically contradictory. It is either worth $X, or worth $Y, it can't be both. The complaints over ED appear to be complaints that a person can't pay taxes on one value, when their house has a totally different value, which just doesn't go very far with me.

      Nobody is "taking" anything, and it's a complete lie to say otherwise. They are buying your house for what you claimed the value was, if you don't like it, well, you should have thought of that before you put in the number to get a tax break.

      •  This is bizarre reasoning (4.00)
        if your house is not for sale, then forcing you to sell it is a taking. As for property taxes, people don't get to decide their own assessment--they pay taxes on what the city/county says it's worth. Similarly, if there is an eminent domain taking, the amount paid in compensation is what the entity doing the taking says it's worth. The only time you can decide the value of your home is when you buy it (what you are willing to pay) or when you voluntarily sell it (what you are willing to accept). But in the case of taxes or eminent domain, the homeowner has no choice at all--not how much, or even whether, to sell.
        •  Don't think so... (none)

          IIRC, in Kelo (and everywhere else) you get paid the amount you were paying property taxes on. Wallmart doesn't just decide to give you $5 for your house, they pay it's assessed (taxable) value.

          If you say that you don't get to set your own asessment, well, maybe, maybe not. I imagine that if you demand that your house be assessed at 5x the current value, nobody is going to stand in your way. The city will be perfectly happy to take the extra taxes, and if you get EDed, you'll get a 5x larger payoff.

          There's your solution. I'm not saying it's right or anything, I'm not terribly comfortable with the idea of Wallmart EDing large tracts of land and such, but it's an economic issue, not terribly similar to personal freedoms. If you want to be paid more when your house is EDed, then you need to declare its value higher. If you don't want to be EDed, then declare the value high enough that nobody will dare.

          This logic obviously doesn't make any sense in places without property taxes (if there are such places), but Conn is not one of those anyway.

          I just really dislike the sophistry that goes on around this issue. Someone declares a thing to have a certain value, someone forcibly buys it for that value. Now, don't say it was "taken", that's not really accurate. What did happen, is you were forced to sell for a price that you declared that you'd sell for (possibly) years ago. Unfair, yes, outright "taking", no, not really.

          Seriously, don't go over the top and talk about this in a theft way. There are various fairness angles, and game theory angles, that need to be considered, but at the end of the day, it's hard to get over the fact that the price was really set by the people currently complaining, which seems to undermine a lot of their complaints.

      •  The argument is more fundamental (4.00)
        By what right is Walmart automatically entitled to buy my property? If it's really mine, then I get to decide whether or not I sell it. If Walmart can bribe the local officials to force me to sell, then I do not in fact own the property.

        Why the hell should I have to pay property tax on it at all, then?

        To suggest that the government can ED any property they want, for any reason they want, completely destroys the concept of private property.

        If I worry about the future, will the future change?--Quai Chang Caine

        by Enjoy Every Sandwich on Thu Nov 03, 2005 at 12:04:31 PM PST

        [ Parent ]

        •  it goes beyond this (none)
          There is a worldview, common among more than a few at this site, that the government has the power to do What-ever it wants, When-ever it wants (Provided, of course, that the Democrats have control of the Congress and Presidency).  Support of Kelo is simply a logical extension of this worldview.  

          This is how they can cavalierly dismiss seizure of your private property for private purposes with a "oh just deal with it through the political process".

          Edwards/Lincoln '08

          by jimsaco on Thu Nov 03, 2005 at 03:14:31 PM PST

          [ Parent ]

          •  Note (none)

            I never said "just deal with it through the political process." That's obviously a non-answer.

            What I did say was MUCH more nuanced, and it has  alot to do with the very  nature of ED "takings" in this country.

            The real problem is that the other side won't look at nuance, to them it's "you were robbed in the middle of the night, your home was burned down while you were still inside, and now you're penniless and homeless..." which is NOT what is happening.

            What does occur is that effectively everyone in the country is being forced to declare that their house is "for sale" for a certain price, and then pay taxes on that price. Then they complain when someone buys their house for the price specified. This may be an unfair system, but the unfairness really began back when the houses were assessed in the first place, but a low assessment is preferred (unless you get EDed), so nobody speaks up then.

            Now, the whole idea of forcing people to set a price initially may be wrong, but we should concentrate on that, rather than what happens years down the line to a small fraction of these people.

            More generally, the crux of this issue, (and many others) is the real nature of the public sphere. With regards to personal issues (body, mind, soul) democrats tend to declare that the public sphere is VERY small. Who you pray to just doesn't affect your surroundings enough for anyone else to have a legitimate interest in your religion. Republicans tend to believe the opposite here, that who you pary to (and have sex with) DOES somehow (though nobody really figures out exactly how, very little science backing it up here) affect your neighbors enough that it becomes their business, hence a republican would say the public sphere in these matters is VERY large.

            In terms of Economics though, Democrats generally conclude that the public sphere is VERY large. A coal plant belching smoke really does affect its neighbors. The fact that it's on private property doesn't mean a thing to the people 50 miles away dying of lung cancer. Republicans believe exactly the opposite, that you can dump cyanide in a river if it's on your property, but you can't have sex with another guy in your own bedroom, because despite all evidence indicating that the cyanide might kill people, and your personal activities will not, they firmly believe exactly the opposite.

            So, if you take the Democratic approach, it causes a lot of good things (endangered species act, OSHA, social security, EPA regulations, etc...) basically allowing the GOV to protect the us from being harmed by the economic activities of others. This also includes things like private property. You can (and the courts do) make a legitimate claim that a crack house next door is negatively impacting you. A meth lab might blow up or poison you at any minute, a crack house might house a bunch of criminals that really do endanger you. Public good in these cases becomse defined very broadly. If the rest of the city must use this section of land in order to have a viable economy and a chance for a job, the this expansive view would tend to support that. Hence, Kelo.

            This is not black and white. Neither party thinks that the Gov should be able to do whatever it wants. Both parties think that the Gov should only be able to interfere in private lives when the good of society demands it. Democrats define the good of society to be something related to economics, safety, personal health, and similar issues. Republicans define the good of society to be effectively what doesn't offend god, and that's the difference. Hence Kelo (abridge personal rights to help the economic viability of area) is different from Roe (abridge personal rights to avoid offending god/delicate sensibilities).

      •  re-taxable value` (none)
        Buying something against a person's will is indeed "taking"! You would stand against Wal-mart forcing an indivual to sell them his property at the price they set. Why would you not stand against a government doing the same.
        First: an indiviual doesn't set the value of his property. Where I live property is assigned taxable value by the Propery Valuation Commissioner.
        2nd: Property can have "sentimental" value greater than its market value.
        3rd: It is very arguable how you define "common good". To me, using eminent domain to take property for private development does not apply to the common good.
        Property rights are inextricably linked with
        all other individual rights. The mistake is granting commercial operations rights beyond those possessed by the individuals operating them.  
        But then, I'm not a lawyer or an economist.  

        "Find the cost of Freedom buried in the ground, Mother Earth will cover you, lay your body down." Neil Young

        by JaketheSnake on Thu Nov 03, 2005 at 12:18:09 PM PST

        [ Parent ]

      •  A home is more than a financial (none)
        asset.  
    •  House bill (none)
      They are discussing in the House right now 'eminent domain'.  Kelo v City of New London showed exactly the sort of lack of respect that a conservative court has for the rights of individuals.  It is strange to think that anti-neo-cons would have to turn to Jeffersonian principles to show the founders intentions with the 'public use' clause.  Look closely at the 5th amendment and something strikes you... the 'public use' clause is the last clause of the amendment; it is something of an afterthought.

      However, it is quite obvious that SCOTUS misinterpreted 'public' as being whatever the hell a government would like to do, including making its 'public use' a private economic development that will undoubtly help the city councillers (sp) keep their jobs.

      Keep your constitution close my friends, and read it daily.

      by smokeymonkey on Thu Nov 03, 2005 at 12:19:50 PM PST

      [ Parent ]

  •  To simplify (none)
    It boils down to this:

    Liberals favor maximum personal freedom with heavy regulation of businesses. Conservatives favor maximum freedom for businesses, with heavy regulation of individuals.

    Liberals want to legislate the boardroom. Conservatives, the bedroom.

    Can we make a bumper sticker out of that one?

    "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

    by Septic Tank on Thu Nov 03, 2005 at 10:31:23 AM PST

    •  Kind of a false distinction. (none)
      As citizens, we are both human beings and economic actors.

      We have sex in our bedrooms, but our right to live in that bedroom--whether through ownership or rental arrangement--is an economic activity.

      •  Wha? (none)
        What does that have to do with the role of the state in either place? Liberals think the state has no role in the bedroom, provided the goings-on are consentual, regardless of whether the actors are renters or property owners. Conservatives think the opposite. Liberals think there's a strong role for the state in governing economic matters (to ensure a level playing field, prevent fraud and abuse, etc.), whether it's policing corporate reporting practices and pollution or ensuring the rights of renters. Conservatives favor the law of the jungle on matters economic.

        "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

        by Septic Tank on Thu Nov 03, 2005 at 10:41:55 AM PST

        [ Parent ]

        •  Consent is the key (none)
          The big difference that I spot is that liberals want to regulate where there are people involved in the conflict who do not consent, while conservatives seem to want to regulate when something they don't like is going on, but where everyone involved DOES consent.

          Same-sex (and for a long time, interracial) marriage and reproductive rights involve everyone directly involved consenting to it, so the conservatives need regulation to stop them.

          Discrimination in lending, housing and work, corporate gouging, environmental pollution etc, where people directly affected are in conflict and don't consent, well, the conservatives figure they can leave that to the all-powerful free market to sort out.

        •  My point is that certain core property (none)
          protections are essential to individual autonomy.

          Our homes are the foundation of our communities and our families.  The shirt on my back, my family photo album, etc etc are all aspects of individual, personal autonomy.

          •  Really? (none)
            Your right to your photo album and your shirt is as crucial as your right to choose when/how to have sex? You must have nicer shirts than I do. :)
            •  Yes. (none)
              In terms of personal autonomy.  

              They are all part of the greater right to be left alone.

              •  Greater right to be left alone? (none)
                Left in splendid isolation, I doubt I would have any property at all, since I do not have the skills to make such things. I am happy to accept state regulation of property since that is part of what makes it possible for me to have property at all.
                •  My point is that some fundamental (none)
                  property rights are essential for personal autonomy.
                  •  OK (none)
                    Which property rights and what do they have to do with fundamental personal autonomy? You mentioned photo albums and the roof over my head. But I have a hard time believing that my photo album is somehow wrapped up in my personal autonomy and I know for sure there's no right in the Constitution that says I get a roof over my head.
                    •  We need things to function. (none)
                      as human beings.  Things like clothes, shelter.

                      We also need things to exercise other rights.  

                      We need religious texts for the exercise of religious faith.  

                      We need means of communication to exercise the right of free expression and the press.

                      •  Sure (none)
                        but we don't need any particular house, shirt, photo album or other piece of property to function as human beings. Nor do we need to personally own any of the things you mentioned so long as we have access to them. There's a vast difference between supporting rights to things necessary to function as human beings and private property rights.
          •  I happen to agree with you on property protections (none)
            In fact, it seems to me that these fall generally on the "personal privacy" side of the coin, and that enforcing property protections is one function of government in a heavily-regulated economic environment.

            "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

            by Septic Tank on Thu Nov 03, 2005 at 11:57:45 AM PST

            [ Parent ]

        •  Personal and business rights (none)
          Economic conservatives are not looking to regulate what goes on in the bedroom. Social conservatives do look to it. We must make a distinction between the country club and religious fanatic wing of the GOP. There is an inherent conflict between the two wings which will manifest itself in 2008 when McCain will be the country club candidate and someone else,I don't know who at this time,will be the religious fanatic candidate.
      •  Oh, you're talking Kelo (none)
        And I'm talking big picture.

        I don't think most Democrats, let alone most Americans, could articulate the personal/economic distinction between left and right, but it seems to me that's the fundament, the constant across all spheres of government -- local, state, federal, executive, legislative and judicial. It's important that we make this principal clear.

        They say Enron can do whatever it goddamn wants, but you can't do just anything with your body. We say, in personal matters, whatever floats your boat. It's not the role of government to stick its big nose into your personal business. But when it comes to economic shit, which affects all of us, the state must act as policeman and arbitrator.

        That's the axis that the privacy question -- and everything else -- tilts on.

        "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

        by Septic Tank on Thu Nov 03, 2005 at 10:48:30 AM PST

        [ Parent ]

        •  Well, an unregulated economy (none)
          is a pure myth, as anyone who's serious about the subject knows.

          Markets exist and thrive because of governmental regulation, not despite of it.  Corporations themselves are statutory creations.  The securities markets are all creations of the state.

          The question is how much regulation is appropriate.

          •  Someone better tell Grover Norquist (none)
            I mean seriously, the WSJ/ATR/CATO/WLF orbit seems pretty comfortable with the notion of zero, zip, nada regulation of businesses. And despite some very minor setbacks (Sarbanes Oxley and... uh, well, that's really about it), they're positively plowing through their crazy wishlist, even as the rest of the GOP agenda gets mired in internal disagreement.

            "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

            by Septic Tank on Thu Nov 03, 2005 at 11:00:58 AM PST

            [ Parent ]

            •  That woud be like telling Fred Phelps (none)
              about the evolutionary origins of homosexual behavior in penguins.
              •  True, but my point is (none)
                you're not dealing with rational actors here. If and when we ever see any grownup conservatives in public life again, we can debate the merits of economic interventionism, but to this crowd, any regulation is un-American.

                "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

                by Septic Tank on Thu Nov 03, 2005 at 11:21:05 AM PST

                [ Parent ]

                •  The Grover Norquist crowd is losing (none)
                  influence.  Colorado just bitch-slapped them.
                  •  Don't count him out yet (none)
                    Reporters love him because he's nutso and he gives good, provocative quote, so he's bound to retain that cache. The business lobby loves him because, well, he's their pit bull field marshall. The business lobby owns the Republican Party. The econ crazies will remain a force to be reckoned with until the GOP is drubbed into near-electoral invisibility. That's not gonna happen in '06.

                    "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." -Benjamin Franklin

                    by Septic Tank on Thu Nov 03, 2005 at 11:54:36 AM PST

                    [ Parent ]

              •  Of all the things on the planet (none)
                Gay Penguins weren't on my top-tenn to think about list. Turkeys, Hammerhead sharks, Ooctopi, fine. Just not those tuxedo swimming birds.

                They're all straight, or fake it really well, with their little orange webbed feet...

            •  not really (none)
              I mean seriously, the WSJ/ATR/CATO/WLF orbit seems pretty comfortable with the notion of zero, zip, nada regulation of businesses.

              You're mistaking their talking points for their actual beliefs, sorta like so many people think Dubya is a devout Christian and patriotic American.  Most corporatists and their apologists would probably starve in an truly free market.

              Proud member of the reality-based minority

              by Bearpaw on Thu Nov 03, 2005 at 11:38:14 AM PST

              [ Parent ]

      •  How pedestrian of you (none)

        Sex only in your bedroom?  Never outdoors?  Never in the kitchen?  Never on the living room floor?  Never at a hotel/motel?  Never in a car?


        I suppose you do it with the lights out at night, missionary position only, covers up to the shoulders, eyes tight shut too.


        I pity you.

        "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

        by praedor on Thu Nov 03, 2005 at 12:04:24 PM PST

        [ Parent ]

    •  Polarization (none)
      I agree with you and I think this is the root of the issue that I have with the 'ownership society'... ie I don't own anything of consequence.  The laptop I'm typing on is worth more than my car.

      It is the division of Americans into workers and owners that is frustrating the majority of liberals today.  And I think your distinction is dead on in terms of who is representing whom in this government.

      Keep your constitution close my friends, and read it daily.

      by smokeymonkey on Thu Nov 03, 2005 at 12:23:50 PM PST

      [ Parent ]

    •  Well.. (none)
      The Religious wingnuts are more concerned about legislating morality and invading privacy. I honestly believe Corporate America could care less, all they care about is making Profits and Money. So I cannot apply that across the board to all wingnuts. As there are actually some huge wingnuts who are Pro choice and Pro Privacy but their issues lies elsewhere...etc.

      America was not built on fear. America was built on courage, on imagination and an unbeatable determination to do the job at hand-Harry S. Truman

      by wishingwell on Thu Nov 03, 2005 at 02:19:06 PM PST

      [ Parent ]

  •  Armando, could you please recommend a diary? (none)
    Please front-page one of the diaries on the races next week in Virginia and New Jersey. Especially in Virginia, we desparately need a LOT of volunteers now to counter the GOP GOTV machine.

    Please consider this. Sorry for the side-trek in this diary.

    The hottest places in hell are reserved for those who, in times of crisis, remain neutral.

    by ten10 on Thu Nov 03, 2005 at 10:32:19 AM PST

  •  How Can Anyone Doubt (4.00)
    that those who founded this country and wrote and adopted the Constitution were in favor of personal liberty? It was such a fundamental aspect of their thinking, that it wasn't deemed necessary to put that explicitly in the Constitution, beyond the first thing they wrote:

    We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

    This is CLASS WAR, and the other side is winning.

    by Mr X on Thu Nov 03, 2005 at 10:36:00 AM PST

    •  Liberty AND general welfare, too (none)
      Why does the right get to get away with acting like a "living constitution" is an intellectual abomination, while their stern-faced "original intent" Talmudic bullshit is accepted as rigorous thinking.

      Keep the preamble front and center.

      We need to stop citing cases and making difficult-to-follow arguments. We need to tell Americans that these judges are radical and unconstitutional. Period.

      Conservatism is killing America

      by grushka on Thu Nov 03, 2005 at 10:44:23 AM PST

      [ Parent ]

      •  Original Intent (none)
        Original Intent was the basis, by the way, of the Dred Scott decision that Republicans use as code for undoing Roe vs. Wade.

        In Dredd Scott case, Chief Justice Taney figured that since the founding generation thought all men are equal and free, and blacks were enslaved or as the constitution says, under the status of servitude, then the Framers of the Constitution did not perceive Blacks to be part of the group they defined as 'men'.

        Thus the founding generations original intent was racist. blah blah blah.

        You could equally use the intent of the framers of the last amendment to the constitution. Which was... in 1992.

        What they thought in 1992 matters more than in 1787 because the extent of the amendment affects their state of mind and what they thought the constitution consisted as. Other wise they would have amended differently.

        In short every time it is amended, it is as if the constitution was re-drafted by a new generation.

        In 1992, when they said all men are created equal, they meant all men black and white and all people, male and female.  1992 trumps 1787, except for what 1992 thought of 1787.

        I mean why not use that.

  •  Revisiting Griswold (none)
    It doesn't require a new anti-contraception law. Any law whose constiutionality is supect because of the right to privacy could offer the occasion to revisit Griswold.

    A state ban on RU-486 might be challenged as a violation of privacy rights. A conservative Court could then kill the 'penumbras' of Griswold in a drive-by shooting.

    I've got blisters on my fingers!

    by Elwood Dowd on Thu Nov 03, 2005 at 10:39:32 AM PST

  •  Thanks (none)
    for another good insight into the workings of the American Judiciary.  As an outsider I find them very informative.

    Halley Seven, United States Nil - You see, it can be done!

    by ian1973uk on Thu Nov 03, 2005 at 10:42:11 AM PST

  •  A better way to sum it up: (none)
    the Right cares about corporations. The Left cares about PEOPLE.  

    And thso ewho DON'T believe that there aren't states that wouldn't love to overturn Roe v. Wade, haven't lived in the SOuth.  

    I stopped using the family pharmacist after he went on the local news declaring he won't stock Plan B becasue it violates his religious beliefs. Since HIS religious beleifs conflict with my right to control what happens to my body, I am using my economic clout to make MY point.  Actually, I'd have far more respect for his position if he decliend to carry birth control--but he filled my birth control prescription for 2 years. The reason Plan B works is that it prevents implantation of a fertilized embryo--and the Pill does PRECISELY the same thing as a back-up in case it fails and ovulation takes place and the ovum is fertilized.  If he opposes Plan B, he shoudl equally oppose the Pill.

    I suspect the reason he will not stock Plan B and pat himself on the back for being a good Christian is because he'd get little call for it, so there's no money lost. But A LOT of women, including Christians, take the Pill and it would prbably slice into his profits.  HYPOCRITE.

    The last time we mixed religion and politics people got burned at the stake.

    by irishwitch on Thu Nov 03, 2005 at 10:42:35 AM PST

    •  They Are the Same (none)
      As Armando points out, corporations have legal personhood.  So in caring about corporations, the right also cares about people.  I'm surprised that there isn't more discussion on how absurd it is that corporations are treated as legal persons.

      Socially Just, Fiscally Responsible: Freedom Democrats.

      by LoganFerree on Thu Nov 03, 2005 at 10:59:51 AM PST

      [ Parent ]

      •  If you would not treat corporations (none)
        as persons, how would you treat them?
        •  As what they are (4.00)

          mere property.  A corporation is made up of individuals, each with their own ideas, opinions, desires, intentions.  They may not all mesh with what the boardroom wants but tough shit. A corporation isn't a person, it is an artificial construct made up entirely  of property - collectively owned property.  A PERSON has an opinion, a corporation has as many opinions as people who work for it.


          Since the Framer's did not include Corporations in the Constitution, they do not get the Constitutional protections of actual people.  That is the most basic and defensible form of "originalism" that can be.  Rights belong to PEOPLE, not artificial constructs.

          "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

          by praedor on Thu Nov 03, 2005 at 11:35:56 AM PST

          [ Parent ]

          •  Exactly.... (none)

            The bill of rights applies to PEOPLE, not to fictitious entities.

            In particular, with limited liability, corporations currently have rights, but not responsibilities. They can lie, cheat, steal, give out all their money in dividends, and then close up shop when someone asks them to clean up some of their pollution. Look in Montana for a good example of some hugely polluted mines that were just abandoned after all the minerals had been extracted, and all the money was transfered to the shareholders. Then the shell of a corporation just declared bankruptcy when Montanna asked them to clean up a little bit.

            I could see a Corporation getting actual rights if an actual shareholders were willing to take its liabilities. If someone is willing to go to jail for negligent homicide when the corp's products kill someone (just like a person would if they killed someone through their own stupidity or carelessness), then I could see a corp also inheriting the rights of that person.

            As long as limited liability remains in place though, it is incredibly destructive to indulge this fiction of corporate rights. Have one, or the other, but never both.

      •  totally agree (none)
        I highly recommend the documentary 'The Corporation' to anyone who needs more info on how a corporation is defined under the law. It makes a clear case: If corporations are defined as "persons," then those persons are sociopaths, not bound by the same inate moral codes that bind individuals.

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

        by valleycat on Thu Nov 03, 2005 at 11:52:23 AM PST

        [ Parent ]

  •  Can these people READ? (4.00)
    I'm not sure the Ninth Amendment can be any more clear than it is.
  •  "Griswold and Roe are Rohrschach tests" (none)
    I disagree.  From 1937 to 1965, it was the liberal postion to reject any form of substantive due process.  That rejection also applied to any preferred postion for "economic rights," be it "liberty of contract" or property being inviolate according to some undefined "natural law."  Although we are small in number, there are many liberals, or progressives, who believe that there is no "right to privacy" in the constitution, and believe that Roe was wrongly decided and that the Griswold could have been decided without reference to "pneumbras" and "substantive" due process.

    If Griswold and Roe are Rohrschach tests, they are test of judicial activism.  The same way that Lochner was a century ago, and that rulings on federalism and commerical speech, for example, are today.  They are all exercises in substituting a judge's particular view of the political economy, the structure of the constitution or personal preferences over the text, or reasonable implication therefrom, of the constitution.

    No more Melissa Beans!

    by Paleo on Thu Nov 03, 2005 at 10:47:58 AM PST

    •  Footnote 4 (none)
      of Carolene Products:

      here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369 , 370 S., 51 S.Ct. 532, 535, 536, 73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666, decided March 28, 1938.

      It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536 , 47 S.Ct. 446; Nixon v. Condon, 286 U.S. 73 , 52 S.Ct. 484, 88 A.L. R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697 , 713-714, 718-720, 722, 51 S.Ct. 625, 630, 632, 633; Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct. 444; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Fiske v. Kansas, 274 U.S. 380 , 47 S.Ct. 655;

      Whitney v. California, 274 U.S. 357 , 373-378, 47 S.Ct. 641, 647, 649; Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673 , 45 S.Ct. 625; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365 , 57 S.Ct. 255, 260.

      Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404 , 43 S.Ct. 628; Farrington v. Tokushige, 273 U.S. 284 , 47 S.Ct. 406, or racial minorities. Nixon v. Herndon, supra; Nixon v. Condon, supra; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177 , 58 S.Ct. 510, decided February 14, 1938, note 2, and cases cited.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 10:53:03 AM PST

      [ Parent ]

      •  Armando (4.00)
        At risk of turning this too much into legal niceties, what is your take on use of the Equal Protection Clause as a way to preserve the rights of discrete and insular minorities rather than substantive due process?

        My thinking is that, ultimately, Equal Protection is the more progressive avenue, so Roe and Griswold aren't necessarily the key defining cases for the liberal/conservative split.

        Dems will fight for a Renewed Deal with the American people.

        by Hoyapaul on Thu Nov 03, 2005 at 11:09:18 AM PST

        [ Parent ]

        •  I saw your comment (none)
          and it struck me that that the Supreme Court did exactly what you suggest in the Family Medical Leave Act case, in a differet context of course.

          There the Court ruled that the Congress properly exercised its power under Section 5 of the 14th Amendment to remedy gender discrimination.

          Ironically, Rehnquist was the author of the opinion.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 11:11:31 AM PST

          [ Parent ]

          •  Very interesting point (none)
            about the FMLA case, and the more I think about it, the more clear Alito's hostility to use of the Equal Protection Clause becomes, which potentially could have even more negative ramifications than his views on Griswold/Roe due process issues.

            If Alito doesn't even believe (as Rehnquist did) that Congress has the authority to apply the EPC to remedy discrimination when Congress provided plenty of evidence that discrimination did exist, this is very problematic.

            I'm still reading Alito's opinions, but this EPC issue may become central just as his views on Griswold will be.

            Dems will fight for a Renewed Deal with the American people.

            by Hoyapaul on Thu Nov 03, 2005 at 11:26:22 AM PST

            [ Parent ]

          •  hey 'mando! (none)
            have you done any overviews of the 9th amendment, especially vis a vis strict constructionism?  it seems to me that strict construction is a fairie tale, with no mooring in either the constitution or the framers' intent.

            James Madison:

            "It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against."

            but IANAL and could be missing something...

        •  I'll add that the reason (none)
          that I think Equal Protection is the more progressive avenue for Courts to use is because (generally speaking) it can be used in a number of different areas to address a "discrete and insular" minority's relative lack of political power vis-a-vis the majority. Applying substantive due process can be useful as well, but its use seems more limited.

          By forcing the majority to apply the laws it passes to ITSELF (and not just minorities), Equal Protection can and should be used to ensure that the law didn't pass simply because the minority didn't have political power with the "merits" of the legislation used as pretext. The law has to pass based upon its own merits, which can be best tested by making sure that the "merits" of the legislation apply to everyone.

          Dems will fight for a Renewed Deal with the American people.

          by Hoyapaul on Thu Nov 03, 2005 at 11:38:02 AM PST

          [ Parent ]

          •  Abortion was illegal for all.. (none)
             it applied and was enforced equally to all women. There was no distinction made for marital status, race, economic class, citizen/non citizen, age, etc...

             So what would be the challenge here?

             

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

            by sebastianguy99 on Thu Nov 03, 2005 at 12:16:40 PM PST

            [ Parent ]

            •  The challenge would be (none)
              that an abortion-restricting law is highly suspect because the law's effect applies grossly unequally to different groups of people (i.e. the law will affect women very much, and men virtually not at all), and that the members of the group that IS affected (women) are a political minority that has faced a long history of discrimination.

              So you look at:

              1. Who the law affects.
              2. Whether the group it affects has a long history of discrimination against it.
              3. Whether the group is a political minority.
              4. Whether the bill would have been passed if it affected everyone, not just this minority group. This analysis would be based on the legislature's reasons for passing the legislation.

              Something like abortion restrictions are highly suspect under this formulation.

              (Also, abortion is an usual case because only women can get pregnant, but my point remains).

              Dems will fight for a Renewed Deal with the American people.

              by Hoyapaul on Thu Nov 03, 2005 at 12:25:29 PM PST

              [ Parent ]

              •  oops, "unusual case" n/t (none)

                Dems will fight for a Renewed Deal with the American people.

                by Hoyapaul on Thu Nov 03, 2005 at 12:26:28 PM PST

                [ Parent ]

              •  Men can't have kids (none)
                 so it by nature, not an act of government, the law applies to them only. If and when men can have kids(god forbid), then this approach might carry more weight.

                 As for discrimination, remeber one has to prove intent, not just impact. Again, I do not see how asking this question would be particularly helpful.

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

                by sebastianguy99 on Thu Nov 03, 2005 at 01:03:41 PM PST

                [ Parent ]

                •  Intent v. impact (none)
                  My argument is what the Court's reasoning should be and could be with a more progressive Court, not what it is now necessarily. Thus, you are right that now the Court requires a searching "intent" of discimination; I would focus more on the disciminatory effect than SCOTUS does now.

                  In any case, I agree that abortion is an unusual case because of the fact that only women can have children. Nevertheless, I think Equal Protection still works mainly because of this fact -- it only applies to a historically-discriminated against political minority, not everyone.

                  Thus, under the EPC abortion restrictions are highly suspect laws that that need a non-discriminatory compelling governmental interest to justify them.

                  Dems will fight for a Renewed Deal with the American people.

                  by Hoyapaul on Thu Nov 03, 2005 at 01:14:00 PM PST

                  [ Parent ]

      •  Footnote 4 (none)
        The Carolene Products footnote dealt with the presumption of constitutionality of a law when dealing with "discrete and insular" minorities.  It has been applied in equal protection analysis, not in so-called substantive due process.

        No more Melissa Beans!

        by Paleo on Thu Nov 03, 2005 at 11:43:40 AM PST

        [ Parent ]

        •  Miss the point (none)
          When AFFECTING Constitutional Rights thereis a different standard - not deference.

          To wit, as I state in my post, Liberals believe government action against individual rights receives higher scrutiny.

          Economic legislation does not.

          The determination of Commerce power by the Congress is given great deference in a non-Constitutional  rights setting - to wit, absent the implication of Constitutional rights.

          My point being the divergent treatment given individual rights and economic rights.

          You seem to be arguing that that was not the case.

          Finally, I understand you disagree that there are privacy rights.

          You may be a Liberal, and that may be your position, but you do not hold the Liberal position on that issue.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 01:01:08 PM PST

          [ Parent ]

          •  Re: (none)
            But the question of individual versus economic rights and whether, in some situations, there is in fact a difference between the two, and whether individual rights should be given primacy over economic rights, has nothing to do with Griswold and Roe.

            I realize I do not take the "liberal" position regarding privacy rights, but I believe I take the progressive position exemplified by the 1937 to 1965 era of New Deal jurisprudence.

            No more Melissa Beans!

            by Paleo on Thu Nov 03, 2005 at 01:13:15 PM PST

            [ Parent ]

    •  hm (none)
      When you say Roe was wrongly decided, do you mean that they reached the wrong conclusion or that the means used to reach the right conclusion were faulty?

      If you say that Griswold could have been decided strictly on Ninth Amendment grounds (which I do), then Roe no longer needs it as a precedent, because Roe would also be decided strictly on Ninth Amendment grounds. Or am I missing something?

      •  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

        [ Parent ]

        •  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

          [ Parent ]

          •  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

            [ Parent ]

            •  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

              [ Parent ]

              •  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

                [ Parent ]

                •  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

                  [ Parent ]

                  •  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

                    [ Parent ]

                    •  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

                      [ Parent ]

                      •  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

                        [ Parent ]

                        •  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

                          [ Parent ]

                          •  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

                            [ Parent ]

                          •  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

                            [ Parent ]

                  •  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

    •  I, along with Justice Ginsburg, (none)
      agree with you that Roe could have and should have been decided differently by focusing on Equal Protection rather than due process.

      I believe Ginsburg's view on this came up during her hearings. It certainly didn't mean that she would vote to overturn Roe, which she wouldn't do.

      However, I think it indicates that you can still be a liberal without believing that substantive due process is the way to assist those left out of the political process. In fact, Equal Protection is probably a better avenue, as it probably would have been in Roe.

      So, in short, I agree with you, Paleo, insofar as you make the case that a committment to substantive due process is the defining characteristic of a "liberal" approach to constitutional law.

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 11:06:12 AM PST

      [ Parent ]

    •  In effect, 1937 started a new constitution (none)
      and the key is that substantive due process was destroyed as a means of attacking economic regulation, which made the court into a superlegislature.  Conservatives like Janice Rogers Brown and "Justice" Thomas don't want to restrict judicial activism, they want to enhance it, by returning to the pre-1937 constitution.  All other arguments are about whether and to what extent the post-1937 constitution protects "discrete and insular" minorities.
  •  The lives of people? (none)
    "Since the New Deal, a fundamental dividing line between liberals and conservatives has been the power that the federal government has over different aspects of the lives of the people."

    An important aspect in the lives of people is the economy. The only real way people have to affect the economy is through forcing changes in tax policy. Corporations, on the other hand, have that and capital-mobility. And with the pay-for-access system we have, corporations therefore have big advantages setting tax law.

    I wonder just how important we are these days. Maybe the sameness of the two parties at national levels is a function of the people's strength.

    -- In Your Face From Outer Space

    by mike101 on Thu Nov 03, 2005 at 10:48:28 AM PST

  •  "I think Griswold was wrongly decided." (4.00)
    Democrats need to repeat this every time they talk about Alito. I don't care if calls it "good law." I think the majority of Americans want a supreme court justice to believe in a right to privacy and to contraception. The public won't buy "It won't get to the Supreme Court anyway" excuse. Would they buy if he said Brown v Board of Education was wrongly decided, but it technically doesn't matter?

    I am totally confident not that the world will get better, but that we should not give up the game... -Howard Zinn

    by Jawis on Thu Nov 03, 2005 at 10:50:52 AM PST

  •  God, that Griswold citation is galling (none)
    Hey genius, there's no such thing as "third trimester" abortion, so I don't think a ban on such procedures would have real teeth, would it. Renders the rest of his "analysis" (and he is assuredly a "he") generally suspect.
    •  huh? (none)
      There are three trimesters (as in two semesters), so what prevents third trimester abortions from being in existence?

      Keep your constitution close my friends, and read it daily.

      by smokeymonkey on Thu Nov 03, 2005 at 12:38:40 PM PST

      [ Parent ]

      •  Before I flame you to (none)
        Do you have any idea what you are talking about? When in your imagination does the third trimester begin? What is the latest the average provider will perform a procedure? Answer those questions and I will clue you in as to my reasoning.

        Fuck it. The short answer to your question is this: The thing that "prevents third trimester abortions from being in existence" is that no provider in their right mind does them past 26 weeks. Third trimester begins at week 28. So there ya go.

        I am excluding emergency procedures (usually due to fetal death) that are performed to save the mother from immediate danger. These can in no way be described as abortions, according to the terms by which most people debate this issue.

        •  so what is partial birth abortion (none)
          if not a third trimester abortion. You are right that most respectable practicioners will not perform such a grusome proceedure.
          •  There is no partial birth (4.00)
            The procedure you are attempting to describe is called Dilation and Extraction, or D & X. These procedures are performed in the second trimester to ensure that necrotic fetal tissue doesn't put the mother at risk for toxic shock, which can be fatal. They are usually performed prior to 22 weeks, but some can be done as late as 26 weeks, usually when genetic test results have been delayed and gross fetal abnormalities have been discovered very late in the game.

            Nothing to do with respectable. No practitioners are performing abortions to fetuses that might be viable outside the womb. None. Find me such an example. There's no such thing as a "back alley" late abortion, the mother would probably almost never survive.  

            The phrase "partial birth abortion" is one coined by the so-called "right to life" movement in order to allege grotesque lies about the services that abortion providers perform. It is not a medical phrase, and it is never used by nurses or practitioners. Late abortion is the accepted phrase, if one insists on focusing on the timing.

  •  A way to reframe the abortion debate? (none)
    Since property rights and money trump everything else for conservatives, perhaps the case for abortion rights should be reframed. Instead calling it the right of a woman to control her own body, which clearly carries no weight with the wingnut worshippers of Mammon,we should talk about supporting the right to spend our money as we choose, and the right to control our own property.

    Raising a child is an enormous financial commitment. How can the government force people to spend their money on something they don't want to spend it on. Why, that's just like taxation - pure evil!

    But did I hear someone say, "then give the baby up for adoption"? What - give away one's property - a most intimate and personal piece of property, containing one's own very genes - to strangers? Without compensation? How dare you even suggest it!  Selling the baby would, of course, be fine from the capitalistic point of view, but I hasten to point out that, for some strange reason, selling one's children is illegal in this country.

    One could, perhaps, simply point out to the "right-to-lifers" that the pregnant woman has her own life to consider; and statistically she is much more likely to die if she continues the pregnancy than if she has a abortion. In no other area does the law demand that a person risk his or her own life to save another.

    •  Life or Property (none)
      That's part of the issue I think. Pro-lifers seek to define the fetus as a "person" under the law, not property. Clearly, once born, there is no winable argument for calling the child one's "property," legally speaking.

      Otherwise, I like your reframing.

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

      by valleycat on Thu Nov 03, 2005 at 12:01:20 PM PST

      [ Parent ]

    •  Risk to mother (none)
      I wish we could keep the notion that pregnancy is a risk to the life of the mother out of the justification for abortion rights. Frankly, the risk is small and I don't want my right to an abortion to be imperiled by medical advances which make pregnancy less risky. Nor am I satisfied by laws that ban abortion but have an exception for the life or health of the mother.
  •  What's also interesting (none)
    is that, in the end, the right-wing's insistance on a "hands-off" philosophy towards the economy in politics and constitutional law alike makes very little sense.

    There is really no such thing as "getting the government out of the economy". Without the government, there would be no economy. In particular, do you think the economy could function without government providing (and paying for) a police force? The court system?

    This was a huge part of the problem with Lochner in the first place. Not only was it right-wing activism at its (least) finest, but it created this scheme of "natural" contract rights while ignoring the fact that without the government's court system, contract rights would be meaningless! So with that said, it makes little sense to say that government cannot regulate something that it itself provides.

    Dems will fight for a Renewed Deal with the American people.

    by Hoyapaul on Thu Nov 03, 2005 at 10:59:29 AM PST

  •  The Rights of Individuals (4.00)
    The entire American Revolution was predicated on the simple assumption that individuals have rights.  "Inalienable rights" as a certain Mr. Jefferson phrased it.  All rights of property are rooted in the more fundamental rights of individuals to go about their daily business without fear of molestation or unwarranted intrusion by their government.  

    The Founders took these rights seriously enough to spend the better part of a decade attempting to get Parliament and/or the king to recognize them.  The Founders took these rights seriously enough to go to war against the most powerful military machine of their age to secure them for themselves.  The Founders took these rights seriously enough to make the recognition of them -- not the granting of them, for the government has not the authority to grant or deny them -- the condition under which they agreed to ratify the Constitution.

    To claim otherwise, as the Conservatives are intent upon doing, is ignorant, treasonous, and so profoundly at odds with the most fundamental goals of the Founders, their stated aims, and the language they labored over for inclusion in the Consitution that the only word for it is:  un-American.  

    The last time a Republican told the truth was when Reagan said, "I forgot to duck."

    by Roddy McCorley on Thu Nov 03, 2005 at 11:02:58 AM PST

  •  Arg that states won't restrict contraception is BS (4.00)
    no state legislature anywhere is going to enact a general ban on contraceptives, or a ban on unmarried people buying and using them.

    This argument of conservatives is totally wrong - it is not so long in the past that states DID outlaw or restrict access to contraception.  What is the basis for saying that a F*'d up state like Kansas won't try it again next year??

    Griswold was 1965.  So at that time, only 40 years ago, contraception was illegal in at least Connecticut.  

    Casey was 1977.  That case invalidated a law restricting distribution of contraceptives too.
    So less than 30 years ago, Illinois was trying this.  And that's Illinois.  

    •  Agreed (none)
      and though I think a ban on contraceptives for married couples is quite unlikely, I think it is concievable and even likely that at least a handful of states would ban it for unmarried couples (i.e. the Eisenstat v. Baird case).

      Note that this would include gay couples and young adults with little political power and doing so-called "immoral" things like gay sex or sex before marriage.

      So you are spot on about this conservative argument being wrong, particularly as applied to unmarried couples.

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 11:42:58 AM PST

      [ Parent ]

      •  contraceptives and roe (none)
        most contraceptives could be outlawed by a ban on abortion...the pill, IUD and other contraceptives and devices in rare and not so rare circumstances can cause the end of a pregnany in its very early stages.....

        only condoms would be absolutely safe to the fetus (soon to be called a 'baby to be' by this new court)...

        the right wing anti-abortion types have written pretty extensively on how they want to outlaw birth control as well...

  •  Ok, so let's change the Constitution (4.00)
    Of course, the Wingnuts hate individual freedoms, but that can't say so, so they hide behind "it's not in the Constitution".  So we should just remove that escape hatch from their playbook.

    Why don't us Dems come up with a well written Right to Privacy Amendment to the Constitution and then force the Right Wingnut to explain why that is bad idea for people to have a right to privacy.  

    I bet they lose that fight.

    •  Several Reasons (none)
      1. We tend to believe that the right to privacy is already protected in the Constitution.

      2. Any such proposal would be immediately siezed upon by the wingnuts as evidence that there is no right to privacy.  After all, why would we need an ammendment if the right already exists?

      3. We tend to have respect for the Constitution, and ammending it is a rather drastic step.
      •  Several retorts (none)
        We tend to believe that the right to privacy is already protected in the Constitution.

        So why did we pass the 13th amendment?  You'd think the Right to Privacy would kinda outlaw slavery?

        After all, why would we need an ammendment if the right already exists?

        Um, because you guys (the wingnuts) keep saying we don't have the right to privacy...so we just what to make is absolutely clear we do.

        We tend to have respect for the Constitution, and ammending it is a rather drastic step.

        I'm not arguing that amending the Constitution should be done willy nilly, but honestly, I don't think absolutely and clearly enumerating in the Constitution that We the People have a Right to Privacy is bad idea.

        •  here's why. (none)
          So why did we pass the 13th amendment?  You'd think the Right to Privacy would kinda outlaw slavery?

          No, because slaves were considered property under the Constitution as originally written; because of Dred Scott, there was a Supreme Court precedent that needed to be overruled.

          The amendment was necessary to remove slavery from its original classification in property law. In fact, slaveowners tried to defend slavery under something similar to what we now call "right of privacy", i.e., what I do with my property is my business, not the government's.

          While it may be politically useful to propose a right to privacy amendment and then use it to beat the right wing about the head and crotchal region, it doesn't change the fact that what we call the right to privacy as recognized in Griswold has always been in the Constitution.

    •  The equal rights amendment (none)
      never was enacted into law.

      I use to think passing an amendment that codified the right to privacy was a good idea.   The wingnuts would claim that passing a right to privacy amendment would allow people to have sex with animals in the privacy of their own bedroom-   so lets go out and defeat the amendment because the bible says people shouldn't have sex with livestock.

      I don't see why we can't point to Amendment 9.   Privacy is fundamental to liberty.    No privacy means we have no liberty.   but i'm no constitutional lawyer or scholar, so what do I know.

      Look up, not down, Look out, not in, Look forward, not back, And lend a hand. -Edward Everett Hale

      by deadinthewater on Thu Nov 03, 2005 at 11:20:43 AM PST

      [ Parent ]

    •  Need explicit right to privacy (none)
      California's Constitution has an explicit right to privacy. I have never heard of anyone wanting it repealed. I think California Republicans would hate to forfeit this right. Do red staters want their identity stolen? Do they want to be denied employment because of a gene in their DNA? No, even those who "believe Adam and Eve rode dinosaurs to church" want government to leave them alone.

      Demanding an explicit Constitutional right to privacy would clearly distinguish Democrats from Republicans and put them on the popular side. Tip toeing around wingnuts out of fear so we can hang on to a vague right does nothing but invite an attack on it.

  •  Third-trimester abortions (none)
    Why does the writer of the quote think that the Supremes would have to "back off" in order to ban third trimester abortions? Under Roe, they already can.
    •  Correct (none)
      AndI thought about pointing that out but it was tangential to my argument so I let it go.

      Roe allows for banning in the 3rd trimaest SO LONG AS there is a health exception.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 11:07:28 AM PST

      [ Parent ]

      •  Armando (none)
        C'mon, I forgive the others here, but you should be better informed. The very notion of a third trimester abortion is a canard. My wife required a late abortion so I know something about this issue.

        The latest procedure that is considered may fall around week 26. This would most likely be an example where genetic testing results were delayed or tests were conducted later than most. If the results show gross fetal abnormalities, such a procedure would be considered.

        Third trimester begins at week 28. Past this point, most procedures are caused by fetal death. In other words the fetus is already dead, so in no way, shape, or form should such a procedure be termed an abortion. These constitute an impossibly tiny fraction of all abortions, and in my view should not even be considered as part of the abortion debate.

        There are no third trimester abortions.

    •  However (none)
      don't forget that Casey's "undue burden" test is what to look to in abortion law, not Roe's trimester system.

      This undue burden test will potentially be quite a bit different following the Ayotte case this term.

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 11:12:42 AM PST

      [ Parent ]

    •  See above thread (none)
      to read my refutation of the very existence of so-called "third trimester abortions."

      Week 26 is when the latest of late procedures might occur. Third trimester begins at week 28. Catch my drift?

  •  The Kelo threat has (none)
    been way overblown.  The bottom line is that the decision to take property is made at the local level by town councils.  Those who would be subject to having their homes taken have every opportunity to raise hell with the body that would decide such an issue.  

    And the reality is that decisions to exercise the right to take via eminent domain are generally very unpopular and usually avoided like the plague.  Indeed, a freeway extension in Los Angeles has been delayed for decades because no one has the stomach for the political firestorm that would ensue from an effort to condemn peoples' homes for a freeway extension.

  •  Aren't There Distinctions Between Roe and Griswald (none)
    One can arguably be consistent in believing in a Constitutional right to privacy and major restrictions on Roe.  My understanding of Roe is that the right to privacy only applies in first trimester, thereafter any privacy rights have to be balanced with the state's interest in the well-being of the fetus.

    I believe Casey got rid of the trimester tests in place of the 'viability of fetus' standard, but nonetheless recognized that the state still has an interest in the well-being of the fetus that trumps privacy rights at some point in the pregnancy.

    Let's say the Court backed off a little on abortion, letting states, for example, ban third-trimester abortion. That backing off would embolden states to go further and set up challenges to Roe.

    Seems to me that states can already ban all third trimester abortions in be in complaince with Roe, just as long as there is a life/health of mother exception in the law.

    So it appears that Roe v. Wade is flawed to begin with because abortion laws should either be wholly based on Consitutionally protected privacy rights, or on state based health and welfare laws.  What Roe and Casey does is say privacy rights attach at beginning of pregnancy, then at some point which is not really defined certain, those privacy rights become subservient to the state's rights.

    Griswold seems to be different because the right to contraceptions does not ripen then disappear.

    Would the abortion debate not be simpler if there was a finite period of time during which abortions are legal, say 1st 12 weeks of pregnancy, then thereafter all abortions are illegal, except health of mother ?   That way we don't have any balancing act, any examination of whether restrictions are an undue burden, etc.

     

    •  Half right (none)
      The Roe Court established the trimester framework, but based it on viability.

      I have had this discussion a lot here because I believe Casey is perfectly consistent with Roe on this.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 11:13:13 AM PST

      [ Parent ]

      •  Nonetheless, the 'Privacy Right' Disappears... (none)
        ...at some point in the pregnancy with respect to an abortion decision.  

        I have trouble with the concept of a Constitutional right that has an time glass running on it.

         

        •  No it doesn't (4.00)
          It is overcome by a compelling State interest.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 11:29:03 AM PST

          [ Parent ]

        •  Then you must also (none)

          Have a problem with free speech "violations" such as the ever-favored restriction on your right to yell "Fire!" in a crowded movie house, or use speech for incitement, or speech for defamation/libel.  Those are all accepted and acceptable restrictions on Free Speech that are not mentioned in the Constituton.  Yet such restrictions are valid and do not negate the fact that you still have a right to Free Speech.

          "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

          by praedor on Thu Nov 03, 2005 at 11:45:57 AM PST

          [ Parent ]

          •  Restrictions on Free Speech... (none)
            ...like defamation or shouting fire are imposed for the purpose of protecting other persons who may be harmed.

            If Constitutionally protected privacy rights are supposed to be the basis for an abortion, then what is the rationale for having any restrictions during the period when such privacy rights are supposed outweigh states' interests ?  

        •  Not anymore (none)
          this may have been true under Roe's trimester system, but Casey's "undue burden" test is now the controlling law, not Roe's system.

          As Armando has stated previously, the state needs a compelling state interest to place such an undue burden on a woman at any point during pregnancy.

          The Ayotte decision this Court term could and probably will go a long way in determining how much viability the undue burden test has nowadays.

          Dems will fight for a Renewed Deal with the American people.

          by Hoyapaul on Thu Nov 03, 2005 at 11:49:02 AM PST

          [ Parent ]

    •  The wrong angle on Griswold (none)
      I think many are missing the point with Griswold.

      We ask how are people protected to their right to use contraceptive?

      The appropriate question is where does the constitution give the government the right to regulate such a thing? I don't see how the government could possibly claim an interest or an authority in regards to such a thing.

      •  Re: angle on Griswold (none)
        I can see a clear right to privacy in the application of Griswold.  You get your contraceptive, you can use it when you like and your right to privacy is never imposed upon.  

        In Roe, the court claims there is a right to privacy but then says but it is outweighed after a certain period of time and there can be restrictions that are not unduly burdensome.  

      •  Wrong angle (none)
        The law at issue in Griswold was a state law not a federal law. States can regulate anything which is not forbidden by the federal constitution or their own constitution. State governments are not governments of enumerated or limited powers.
        •  Not quite the case... (none)
           The states do not have unlimited power. The grant of authority comes from the people.

           In addition, if one reads the 9th and 10th Amendments, it is quite clear from the text that the people retain rights so it is not true that the states are not limited.

           Perhaps what we should be debating is what are those limits as apllied to the states?

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

          by sebastianguy99 on Thu Nov 03, 2005 at 03:15:15 PM PST

          [ Parent ]

    •  Abortion rights (none)
      I bet you didn't know that at the time the Constitution was adopted,abortion was only illegal when the child had "quickened"which was the common law rule. The abortion statutes struck down in Roe were passed in the 1830's and 1840's for the most part.
  •  just because kelo was "correct" (none)
    doesn't make it right.  and it wasn't all misunderstanding, a lot of people really thought that O'Connors was the correct decision.
  •  FWIW ... (none)
    I view the 9th Amendment not as a blank check that allows anyone to declare a right and have it be Constitutional.  IMHO, the 9th was included to ensure that the rights that we had as Englishmen by law and by common law were not lost when the Constitution was ratified.  So, when one talks about a Consitutional right to privacy, I would suggest to you that what was intended was for those aspects fo privacy which can be shown to be ours prior to our revolution.
    •  Common law (none)
      And what does Common law mean? Judge made law.

      To wit, "judicial activism" was built into the Constittion.

      I have argued this point in my defenses of A Living Constitution.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 11:14:48 AM PST

      [ Parent ]

      •  Interesting angle (none)
        I'll allow you to define Common Law as you will.  As I used the term (perhaps incorrectly) it was to refer to non-statutory legal constructs, such as precedents and customs.  I may be abusing the term.  Conceptually, that is what I think the 9th was included for.
    •  not quite (none)
      I view the 9th Amendment not as a blank check that allows anyone to declare a right and have it be Constitutional.

      Personally, I don't claim it to mean such. During the passage of the Bill of Rights, Madison was very clear on what the Ninth Amendment was supposed to be: a recognition that there are other individual rights that are not, and indeed cannot be, enumerated, and that they are protected under the same shield as freedom of press, assembly, gun ownership, etc.

      What I interpret the Ninth as -- and, BTW, my interpretation is correct -- is a requirement that the government be able, for any law that it passes that restricts individual freedom, to show a compelling interest why the evil of the restriction is less than the evil that comes from the lack of the restriction.

      •  Presumptions of Liberty and constitutionality (none)
        * that restricts individual freedom, to show a compelling interest*

        Are you familiar with the famous (or perhaps infamous) footnote 4 of the Carolene decision?  The court declared in that footnote a presumption of Consitutionality wrt state laws.  That is to say that other things being equal, the burden is on the individual to demonstrate that a law is unconstitutional.  Since then, we had the Griswold decision which modifies this, providing a presumption of liberty, shifting the burden to the state where "fundamental" rights are concerned.  The SCOTUS then assumed the responsibility of informing us of whether or not a particular right was fundamental enough to override a state's power to pass such a law.  All in all, a rather messy outcome!

    •  My view. (none)

      I always considered the 9th amendment to be a statement on the possible expansion of the bill of rights.  Essentially, it states that the preceeding amendments are not necessarily all the rights, and additional ones can be added via the amendment process.


      The "blank check" to add rights via judicial fiat always struck me as bizarre.

      •  Whence our right to ... (none)
        appear before the bar unshackled, for example?  Or the right to confidentiality of communication with a lawyer?  Or the right of a spouse to withold testimony?  I think that they come from earlier precedents that we enjoyed prior to the ratification of our Constitution.  It was to secure retention of these rights that the 9th was included.
        •  They were upheld by courts... (none)

          ...who followed the judicial fiat theory of the 9th amendment.  Hence, citing the fact we have them is circular logic in support of that approach.


          Just because it has been tradition to have confidentiality with a lawyer doesn't mean it's an inalienable right that must, therefore, be enshrined somewhere (if not explicitly) in the constitution.


          Plenty of things most people would consider "rights" are simply things not banned by the state government.  People take commerce for granted, although the state can ban commerce in certain products, or in certain ways, or even (theoretically) entirely!  There's no "right" to commerce, and the mere fact it exists isn't proof that it is somehow invisibily enshrined via the 9th amendment.

          •  It goes further than that (none)
            Just because it has been tradition to have confidentiality with a lawyer doesn't mean it's an inalienable right that must, therefore, be enshrined somewhere (if not explicitly) in the constitution.

            Using this example, I contend that the "tradition" wsa one that was recognized and upheld in courts of law prior to our revolution.  Therefore by virtue of the 9th, it is enshrined in our Constitution.  States may not pass laws that violate this right.

            This is in contrast to a right to play cards for money.  Just because we can today does not mean the state may not pass a law to change that tomorrow.  

            So, in contrast to our right to lawyer confidentiality which does exist, the right to gamble does not exist.

            •  So we have a right to anything traditional? (none)

              Everything prior to 1776 is just grandfathered in?  If I recall, it was customary and even often expected for a husband to beat his wife (Only tangentially related link, provided for background.)


              Should that right extend into the present day under the 9th amendment because it existed in english common law?  If that's true, wouldn't it take a constitutional amendment to outlaw beating your wife?  If not, why not?


              •  Not really (none)
                Only if you assume the following:

                1.  A woman did not qualify as a citizen (the answer was not obviously "no", prior to the 14th amendment and women's suffrage, the 19th Amendment).

                2.  A man had the right to beat his wife.  That is to say that it was a tolerated custom that was not negligently allowed or not prosecuted.

                Anyway, after the 14th was ratified and after women's suffrage any pre-exisiting right, if such existed, was certainly removed.
                •  Ok, but what you're saying... (none)

                  ...is that it would be included via the 9th amendment, but it would be overruled by later amendments?


                  That may work for the (admittedly extreme) case of wife beating, but I'm sure there's parts of english common law (not my specialty) that you can think of that shouldn't qualify as "rights" in the modern day.

                  •  Over my head (none)
                    You described what I meant well.

                    I'm afraid that I also lack a good understanding of our common law.  I am speaking on a conceptual basis, as well as I understand it and can only provide some further examples that I know of.  The right of spouse to withhold testimony in criminal proceedings is not enumerated in our Constitution, but was retained as an unenumerated right from the 9th.  If not, then how did we come by this right?

                    Just to be a bit more clear, I define an individual right (under the US Constitution) as something that government at any level may not (lawfully) pass a law against, without amending the Constitution.

                    •  Aren't you begging the question? (none)

                      The right of spouse to withhold testimony in criminal proceedings is not enumerated in our Constitution, but was retained as an unenumerated right from the 9th.  If not, then how did we come by this right?


                      ...you're assuming we possess this right.  Technically, we can do anything we please so long as there is no law against it.  If no law against such had ever been passed, how would we make the distinction below:


                      Just to be a bit more clear, I define an individual right (under the US Constitution) as something that government at any level may not (lawfully) pass a law against, without amending the Constitution.


                      That's a fine definition, but at what point can you make new laws as society sees fit?  Do you have the right to chose your own doctor, because you have historically been able to pay them for services?  If we institute national health care, can restrictions on paying a doctor cash to jump line be struck down on the basis that we have a 9th amendment right to buy treatment from a doctor?

                      •  Liberty vs Right (none)
                        To answer your first question, My assumption is that any level of government may force a spouse to testify in a criminal proceeding.  If the state attempted to pass a law to require it, I think that such a law could not be upheld.  Therefore, that is a spouse's right.

                        Let's see if the distinction between liberty and right is useful.  If there is no law against an activity, then we are at liberty to perform that activity.  If a law may legally be passed against performing that activity then the activity is not a right.

                        So, we are at liberty to do anything that is not against the law.  We have the right to anything that may not be Constiutionally legislated against.

                        •  But as long as we have a liberty... (none)

                          ...how do we know if it's a right?  If I pass a law making something illegal that was not before, how do I know whether I've violated a right not previous enumerated?

                          •  Commn Law (none)
                            One must look to the rights the we enjoyed under British rule.  If we had the right prior to ratification, then our government (at any level) may not pass a law against it.  Such a law should be ruled unconstitutional by the courts.
                          •  But as we've established, some are ridiculous. (none)

                            Plus, that's ignoring the issue that parts of the US (Louisiana) weren't founded on British common law to begin with!

                          •  I don't follow you (none)
                            But as we've established, some are ridiculous

                            I'm not sure we established this, but let's go forward assuming that we have.  Lots of laws are ridiculous.  Are they therefore not allowable?

                            You're correct about LA, but they inherited the same rights as other US citizens by virtue of joining the Union.

                          •  On a different angle (none)

                            We have a number of enumerated rights in the 1-8th amendments, which were previously upheld in english common law.  If the 9th amendment truly enshrines english common law "rights" and rights, why are some enumerated and some are not?


                            I just don't see an "active" interpretation of the 9th amendment as enumerating unspoken rights as anything but an exercise in wish-fulfillment.

                          •  Quoth Madison (none)
                            It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

                            That clause beceome the 9th.  Furthermore:

                            The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution

                            The use of the phrase retained by the people informs me that he was referring to those rights which we already possessed prior to ratification.

                          •  But his argument is mainly against Federalism. (none)

                            that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.


                            This is more an argument for the 10th amendment and a limit to federalism than unenumerated rights held specifically by the people.


                            His statements happen long before Wickard vs. Filburn which would see the near complete subversion of the 10th amendment.  Indeed, the 9th amendment was essentially ignored as indeed being superflous until well after the 10th amendment was substantially weakened.  It was only then that interest in it revived.


                            His comment about "inserted merely for greater caution" backs my view to a certain extent. Retained takes on a very different definition after Filburn.  Prior to that case, the federal government had very limited powers, and anything not explicitly granted to it was untouchable, simply because the power was not delegated.


                            As for "by the people" rather than "by the people and states," recall that this was still well before the Bill of Rights applied to the state governments!

                          •  Wickard v Filburn (none)
                            This decision allowed growth of the Commerce and 'necessary and proper' clauses, thus bringing more powers into the scope of Article 1, Section 8.  You and I are probably in agreement that such an expansion was not in line with the letter and intent of the Constitution.  That and much more damage has been done to the 10th.

                            I'm not sure where you're going here.  Are you saying that the retained rights are those of the states?  If so, to an extent I have to agree with you historically.  However, subsequent to the 14th I think that the limitations on the states therein left those retained rights in the hands of the individuals.

                          •  Not quite where I was going. (none)

                            I'm not sure where you're going here.  Are you saying that the retained rights are those of the states?  If so, to an extent I have to agree with you historically.  However, subsequent to the 14th I think that the limitations on the states therein left those retained rights in the hands of the individuals.


                            Well, yes, although this is kind of academic to the core issue.  I'm basically asserting that it is a reasonable view to see the 9th as not granting any actual rights.  Essentially, it is a guard against Federalism, stating that the government doesn't get any magical unenumerated powers just because they aren't specifically barred from doing something.


                            The 10th essentially superceded it, and the 9th has only come back into the limelight because Wickard vs. Filburn essentially killed the 10th.  Thus the need to mint new "rights" when we want to prevent the Federal government from doing something.


                            That's a terribly sloppy approach to law though.  Once you starting coining rights to give people abortion because it's "popular" the constitution doesn't seem like much of a limit on anything anymore.


                            Additionally, we've probably made this article completely unreadible via too many replies now.


                          •  I enjoyed it (none)
                            I just wanted to take a moment to mention that I enjoyed our discussion.
                  •  Blackstone (none)
                    The reference to our common law that I have heard mentioned most often (including by the SCOTUS) is Balckstone's Commentaries.  Here is a relevant (andperhaps amusing, given its archaism) passage:

                    http://www.yale.edu/...

                    THE hufband alfo (by the old law) might give his wife moderate correction h. For, as he is to anfwer for her mifbehaviour, the law thought it reafonable to intruft him with this power of reftraining her, by domeftic chaftifement, in the fame moderation that a man is allowed to correct his fervants or children ; for whom the mafter or parent is alfo liable in fome cafes to anfwer. But this power of correction was confined within reafonable boundsi ; and the hufband was prohibited to ufe any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet k. The civil law gave the hufband the fame, or a larger, authority over his wife ; allowing him, for fome mifdemefnors, flagellis et fuftibus acriter vering him, for fome mifdemefnors, flagellis et fuftibus acriter verberare uxorem ; for others, only modicam caftigationem adbibere l.

                    It's fascinating reading, in a way 8^)

  •  question about "right to privacy" (none)
    there's been a lot of talk about the "right to privacy" around here ever since "abortion rights" was reframed.  many advocated a "right to privacy" ammendment to the constitution.

    how far does the right to privacy actually go?  would this apply to all those corporations that store tons of data about us?  video cameras on street corners? hell, one could even argue that income taxes are an invasion of privacy!  

    i'm asking because i wonder what other people think the implications of such an amendment would be.

    •  My guess (none)
      would be that a privacy amendment wouldn't change much substantively except to take away the argument once and for all that there "isn't really" any right to privacy in the Constitution.

      The reason I don't think it would change much substantively is because courts would simply work with the current guidlines of what the right to privacy means, unless, of course, the amendment expressly changed this precedent.

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 11:55:50 AM PST

      [ Parent ]

  •  wonderfully concise (none)
    now a question.  How do "originalists" reconcile the separation of church and state with their blurring of those boundaries in their most recent decisions in Texas and Tennessee?
  •  Excellent work Armando. n/t (none)

    Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

    by bronte17 on Thu Nov 03, 2005 at 11:23:17 AM PST

  •  A Step Further (none)
    It isn't often that Armando and I agree about abortion, but fundamentally I agree that it is a Rorschoch test.  However, I take his anaylsis a step further, and I know that Armando won't like this because it completely undercuts his analysis of the difference between Republicans and Democrats, but I think what a candidate for office believes about this on a fundamental level tells me all I need to know about a candidate too, and I know that doesn't square with Armando's views on Casey in PA and Snowe in ME.  I agree that it is a litmus test for me, but it doesn't have the same results for me in requiring me to vote Democratic.
  •  An empirical example is needed for the nominee (4.00)
    A difference of opinion concerning a decision among attorneys is to be expected. Just as two carpenters would disagree on how to best frame a window.

    So, put them to work and see it in action.

    The issue I have with all the talk of judicial philosophy is that it is abstract. For better or worse I am an empiricist and learn more from example. Put people, including supreme court nominees, into a situation and see what they do.

    The question I would still like to see asked in the Senate hearings is by necessity going to shock the gallery while illuminating the issue. Imagine if Diane Feinstein asked, "Judge Alito, have you and your wife ever used a contraceptive?"

    The gallery would gasp. Republicans, including the chairman, would be incensed and demand a retraction. Ms. Feinstein could hold her ground and require an answer as it would tell us what we need to know about privacy rights.

    Alito might demur from answering, "That is a private matter."  

    Ms. Feinstein might then inquire where in the constitution he finds support for denying the government that information.  He is not on trial and his statement will not put him into jeopardy with the law.

    Alito would then need to provide cites that justify his position. Does he turn to Griswold or to other precedent?  His choices will tell us more about his judicial philosophy than volumes of past writings.

  •  Great diary, Armando (none)
    1.  Are you saying or implying that this is a texas two step.  ie Accept the right to contraceptives but deny its basis in privacy/autonomy => the justice need not extend the basis to any other  issue?  Such as equal marriage?

    2.  Isn't the authority of the (union) federal government to regulate property rights also grounded in the Civil War/Emancipation Proclamation as well as Commerce Clause.  I mean it is usually understood as being about status, but actually it wa about property and commerce and the Fed right to regulate it.

    3.  Wouldn't we be better off if the bedroom rights were grouned in the free speech right rather than in the privacy right?

    Fighting them here, so we don't have to fight over there.

    by NorCalJim on Thu Nov 03, 2005 at 11:25:47 AM PST

  •  State differences in Roe v Wade support (none)
    Yesterday's Gallup poll said that 53% of Americans do not want Alito confirmed if he would overturn Roe v Wade, while 37% want him confirmed if he would. Is there any state-by-state breakdown on this issue, i.e. in which states does a majority of the population want Roe v Wade upheld? And in which states does a majority want it overturned? Is there a real Red State/Blue State gap on this issue, or is that an illusion of the Blustering Classes? (which includes a lot of the religious mavens)

    If I can't dance, it's not my revolution. -- Emma Goldman.

    by DoctorScience on Thu Nov 03, 2005 at 11:29:29 AM PST

    •  yep (none)
      Is there any state-by-state breakdown on this issue, i.e. in which states does a majority of the population want Roe v Wade upheld? And in which states does a majority want it overturned?

      Here's a recent poll
      As you can see the spin of the anti-choice camp claiming anything close to a  majority sharing their bias is grossly overstated. Not that the opinions of the citizenry matter to these folks...

      "...the definition of a gaffe in Washington is somebody who tells the truth but shouldn't have." Howard Dean

      by colleen on Thu Nov 03, 2005 at 04:41:07 PM PST

      [ Parent ]

      •  Thanks! (none)
        What's really kind of astonishing to me is how many pro-choice people must have voted for Bush. Didn't they know this was coming? Or didn't they care? I mean, Bush's base sure did, it's what they've been slavering for.

        If I can't dance, it's not my revolution. -- Emma Goldman.

        by DoctorScience on Thu Nov 03, 2005 at 06:56:04 PM PST

        [ Parent ]

        •  Pro choicers for Bush (none)
          The country club GOP wing voted for Bush because their tax cuts were more important to them than their Pro-Choice views.Also,in 2004,terrorism fears played a role.IMHO,Roe will never be overuled anyway,in their heart of hearts,the Republican justices know that the shit storm would be deadly for their party.
  •  And what about people who believe in both? (none)
    Although many conservatives seem to be strongly in favor of property rights while disdaining individual rights, I really take issue with the idea that you only can be one or the other. I know many libertarians that believe in both individual rights and property rights, myself included. The right to not have the government take property away from you unless they have a damn good reason is equally equivalent in my eyes to the right of privacy or any other. I don't pick and choose my rights. I personally believe that the court went too far with the power of the city gov't in Kelo and I'm glad states are passing laws to limit it.
    •  Thats the way I'd like to see the constitution (none)
      interpreted as well. And how about gun rights. The Left is all for individual rights and the BORs EXCEPT for the 2nd Amend. Then they want to be textualists a for states rights on just that one right.
      •  Nah. I'm a librul Dem (none)

        And I just recently picked up a very lovely pre-ban FN/FAL carbine.  In earlier years I had a S&W 9mm handgun but it was stolen when a burglar broke in while I was away and took it (lot of good a gun did and I was never afraid of someone coming in while I was there...I could deal with such bozo with or without a gun) - I opted for a more effective tool:  a good dog.  Dogs are empirically better at deterring burglars and such than any gun can be, plus they are actively 100% on your side and loyal unto death if need be.  Can't beat that.


        Be that as it may, I went for years without a gun or even a desire to own one...until the Patriot Act, Iraq Debacle, people against the war being called "traitors", attempts to bring down the wall between church and state, the ability of the Prez to simply declare someone a bad guy and have them disappeared into a new gulag system, torture, etc.  Suddenly a military-quality weapon became very attractive.  I also bought brand-spanking-new-and-still-in-the-package military body armor for the same reasons.  Of course, I am also a military member and, as a "perk" of that fact have a nice kevlar helmet, nerve agent antidotes, chem detection paper, decon kit, night vision binocs.  Yet here I am, a life-long Dem and librul.  Go figure.

        "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

        by praedor on Thu Nov 03, 2005 at 12:20:04 PM PST

        [ Parent ]

        •  Wow, you have a whole arsenal. Cool. (none)
          If the govt attacks Im comin over to your place.

          What do you mean 'nah' though. There are alot on the left that want to ban guns or license them, etc.... And with all this talk of how much the left is for indvidual rights and the right isn't (which I agree with for the most part) I just think it was necessary to point that out. Not only is it inconsistent but its causing democrats to lose elections. 'Gun control' needs to be dropped imo, it turns off a whole block of voters that may otherwise vote for Dem candidates.

          •  Regulating guns (none)

            Is fine by me.  Felons don't need nor deserve them.  Wife beaters don't need them.  You know, the types of people that want a gun and would likely USE it to get rid of witnesses, people who insult them, people who cut them off in traffic, wives that have the gall to talk back, mental cases...none of them need guns and so it is correct to regulate them to ensure they don't.


            I also don't think people need RPGs, recoiless rifles, antitank rockets, antiaircraft rockets, claymores, handgrenades, howitzers, machine guns, mines, etc.  I'm OK with regulating those out of the hands of the general public too.  Beyond that, if you are not a wackjob, wife beater, extreme homophobe, "abortion doctor" threatener (falls under wackjob, I think), etc, then enjoy your M14, FN/FAL, HK G3, etc.

            "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

            by praedor on Thu Nov 03, 2005 at 12:59:06 PM PST

            [ Parent ]

          •  Gun control (none)
            Gun control cost Al Gore West Virginia in 2000 and probably his own Tennessee.
      •  Any gun you want... (none)
        ...as long as it's pink?

        Machine guns, mortars and tanks are OK with me, but they have to be pink, too, to be legally owned by other than government.  Imagine the billboard of 50 Cent with a pink gun. He's just as lethal, but not as threatening.

        •  Actually I think there is a group called 'Pink (none)
          Pistols', so that would work good for them. I think theyre a gay group... might be a womens group though.

          As much as I believe in the 2nd Amend, I do not think it covers tanks and mortars. But I do believe in expanding the right as far as possible, and that would include assault weapons, concealed carry,... and maybe even machine guns, although Im not sure about that.

          •  pink pistols (none)
            is a group with different agenda. They want to arm gays with threatening guns so as not to be threatened. In my neighborhood the guys just wear black leather and pump iron to convey the same message.

            Mine is to color guns pink so as to defuse guns as symbols of macho posturing by insecure wimps and return them to the realm of tools. e.g. I need a tool to hunt my dinner. I need a tool to target shoot. I need a tool to defend my home. If you need a public symbol for macho posturing go buy a HEMI pickup with dual rear wheels.  Don't blame me when the neighbors laugh.

            Seriously, the role of guns in our society is dominated by image, not use. Watch movies over the decades and notice how guns evolved in their use as a plot device. Not that long ago a gun was produced in moments of extreme jeopardy.  By the '60s a gun was introduced by the writer of limited imagination who needed a dramatic change.  Now a gun is the theme of a movie and the focal point of the movie poster.  But that's another thread.

      •  how odd (none)
        that you should mention this, when I wrote about the very topic earlier today [/blogwhore].

        BTW - Armando, I still think you're wrong about Kelo, but the rest of your diary is spot on. Thanks are also due to the many wise commenters here, including "mrblifil" for the important (and, I imagine, personally difficult) information and insight re: late abortions.

  •  The entire "original intent" (none)
    debate gives me a headache.  Those conservatives who believe in the so-called "original intent" of the Constitution (as defined by them, of course) remind me of the Sola Scriptura Bible-thumpers who believe every word of the Bible literally and think the world was created in 4000 BC.  Are Scalia, Thomas, and the rest of the "O.I." bunch channelling the Founding Fathers, or do they hold seances and speak to them regularly about their original intentions?  It's Sola Consitutio and makes about as much sense as Sola Scriptura.  Times change; the Constitution should be a living document (within reason, of course).
    •  And probably most importantly (none)
      is recognizing that looking at "original intent" (or "original understanding", as they prefer) exclusively would radically change life in today's America.

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 12:00:40 PM PST

      [ Parent ]

    •  You left out the best part... (none)
      ...those who claim to adhere to "original intent" for some reason dismiss the Preamble is unimportant.  The Preamble, of course, is the Founders' statement of their intent...

      "...the big trouble with dumb bastards is that they are too dumb to believe there is such a thing as being smart." -- Kurt Vonnegut, Jr.

      by Roddy McCorley on Thu Nov 03, 2005 at 03:54:13 PM PST

      [ Parent ]

  •  The real division in society comes in 1862 (4.00)
    1862 Saw the creation of the limited liability Corporation.

    It changed everything.

    We often see the Civil War as the great inflextion point in American history because after it you have a different America.

    But the reason its different isn't so much because of the War in the 1860s, it was because of the invention of the modern corporation.

    After that point, America becomes increasingly a society of giant trust and vast inbalances in wealth: Enormous concentrations in wealth on the one hand and vast expanses of squalor on the other.

    This disparity in wealth distribution handicaps America until the New Deal comes along and adresses some of these propblems.  

    Corporations created many blessings. We get a lot of utility out of them.

    But the also cause creation of imbalances of wealth. Prior to the Civil war most people earned their wage as independent contractors.  Individuals bargaining with individuals for a wage.

    Wage providers also had to compete with the opportunity cost of homesteading on the fronteer. So AAmerica before the Civil War was reasonably well balanced economically (north of the Mason Dixon line of course.)

    And this fairly equal distrubution of wealth creates a massive middle class.  The massive middle class gives birth to social concerns of morality, thus the movement to end slavery in the north is a direct result of wealth distribution.

    After 1865 these conditions erode.  Corporations are collectives.  Individuals were at a supreme bargaining disadvantage with corporations when it came to wages. Thus the birth of massive wealth maldistribution.

    The concentrations of wealth gave birth to a new class in America, Uber Wealthy Robber Baron Rich. The very class that makes up the Neocon economic movement.  George Bush is a descendent of this class. All he and his movement have been doing is try to recreated the gilded age. And they are succeeding.

    During this age, Imigration was largely unrestricted because Uber Rich like the downword pressure it put on wages. More moneyfor them, more squalor for the rest. Oh well poverty is a function of moral inferiority.

    Wealth Concentration always ends in collapse. It preciptated the fall of the Roman Empire, Medieval Japan, the New Kingdom in Ancient Egypt, Bourbon France, Romanov Russia, and in the United States the Great Depression.  

    The Great Depression only ends when conditions cause wealth to be redistributed out to the mass of society.  This was done by warfare creating a great demand for labor and after the war, by unions.  

    Thus the New Deal ended the structural problems that created the great depression by causeing collective ownership to have to bargain wages with collective labor.

    Fair is fair.

    The problem was that Labor was too strong in the balance of power. A better solution was the Japanese model: one company one union.

    The Japanese model prematurely chased America into a post industrial age.  The Neocons blamed it on Unions of course and they  have been back peddling ever since. But in other countries, especially those Japanese Companies that chased us out of industrialism, Unions are doing fine and wealth distribution is fine and as a result they are truly functioning democracies.

    Which is why Neocons don't want to be allies with them anymore.

    Thats it in a nutshell.

  •  Sick and Tired.... (none)
    of thos never-ending fight over whether or not 'privacy' exists in the constitution...there is only ONE WAY to ever put this never-ending fight to rest....we need to amend the constitution to make 'privacy' an undisputed right...

    "if all the world's a stage, who is sitting in the audience?"

    by KnotIookin on Thu Nov 03, 2005 at 11:42:44 AM PST

    •  What will "privacy" consist of? (none)

      That's my question.  If you have a right to privacy, what happens to people who unintentionally violate it, i.e. pass long information they thought was public?  Once you have a right to privacy, you basically task the government with suppressing information about you.


      I'm not sure this is desirable.

      •  Its all in the Article Used (none)
        An amendment could state that you have "a" right to privacy, without stipulating what that right is, giving wiggle room for courts to figure out what is pragmatic or not, or even legislatures.

        If you have "The" right to privacy then the case you make arguably presents itself.

        However, no right to privacy could be universal. The extent you engage in public dealings is the extent to which your privacy ends.

        •  You want to give them wiggle room? (none)

          Why in the world would you want to add a "right to privacy" and then let the courts decide what was meant by that?  Look at the debate over the 2nd and 9th amendments, and ask yourself if that's really what you want.


          Who knows what they'll decide it means.

      •  i would rather see a fight.... (none)
        over what the parameters for a privacy amendment would consist of rather then this endless fight over whether or not we even have a right to privacy....i am tired of hearing that we are the worlds greatest democracy and then we have to fight endlessly over whether the citizens in this great democracy have a right to privacy <sigh>

        "if all the world's a stage, who is sitting in the audience?"

        by KnotIookin on Fri Nov 04, 2005 at 04:38:49 AM PST

        [ Parent ]

  •  Why stop at Griswold? (4.00)
    Why not inquire a nominee's opinion on other cases involving privacy under the liberty component of 14th Amendment's Due Process Clause.  Such cases include the following:

    The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

    by jim bow on Thu Nov 03, 2005 at 11:42:53 AM PST

    •  What Alito says about Skinner (none)
      ... in his dissent in the Third Circuit's Casey decision, Judge Alito cited Skinner v. Oklahoma.  Here is all of what he said about Skinner:
      The Supreme Court has held that a man has a fundamental interest in preserving his ability to father a child.

      That speaks volumes about Alito's perspective.

      ModestNeeds.org Response For Hurricane Evacuees

      by socal on Thu Nov 03, 2005 at 12:32:10 PM PST

      [ Parent ]

      •  goodness gracious.... (none)
        i thought you meant the skinner that created a box and raised his daughter in it for years..for scientific research...i thought you were going to say there was a ussc decision giving you the right to raise your kids in a skinner box  lol

        i think i need more coffee  :)

        "if all the world's a stage, who is sitting in the audience?"

        by KnotIookin on Fri Nov 04, 2005 at 04:41:36 AM PST

        [ Parent ]

  •  One Last Big Thing (none)
    The thing people are forgetting is that until the current conservative movement's ascendency, our judicial heritage, from something like 987A.D., has been one of more or less straight-line progress.  Yes, progress.  

    At bottom, the idea of progressiveism is that once we move forward, we don't go back.  We are always improving people's lives.  Traditionally, convervatives have been in favor letting people fend for themselves.  But the new "conservatives" actually want things to go backwards - judicially, legislatively, economically, socially.  It is an extreme recoiling from the specter of ordinary people using the levers of power to improve their own lives.

    Don't worry -- at the end of the day, we always win.  We are, after all, the good guys.

  •  Quibble (none)
    It's "soft pedal", not "soft peddle". But you probably don't like ped-antics like this. ;)
  •  Does the right to privacy include drug use? (none)
    Seriously, does the Constitutional right to privacy give me a right to introduce drugs (marijuana, cocaine, heroin) into my body? If not, why not?

    I'm bringing up this point not to argue against Roe or Griswold, but to  point out that the (interpreation of the) right to privacy is rather ill-defined and is delineated according to political lines and social mores, and does not arise from some fundamental reading of the Constitution.

    •  My favorite (none)
      counter-example (if it qualifies as one) is whether one has the right to set fire to one's cat in the privacy of one's home.  This example also raises the questions of whether and/or to what extent the government may regulate morality.
      •  The cat (none)

        Is an independent sentient being.  So, no, you do not have a right to be cruel to animals, people, etc.  You may feel free, if you like, to set fire to yourself however, as long as you sign a form indicating that, if you survive, you will carry 100% and fully yourself the medical costs of your decision rather than expect everybody who pays for insurance to cover the costs for you...or taxpayers who fund emergency rooms.

        You are also free to burn papers, books, records, blankets, wood...all inanimate, nonsentient objects, so long as you do not endanger anyone else (toxic fumes from burning foam pillows, acrylics, plastics, etc).

        "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

        by praedor on Thu Nov 03, 2005 at 12:26:58 PM PST

        [ Parent ]

        •  A Legal Conclusion? (none)
          So, no, you do not have a right to be cruel to animals, people, etc.

          My state has a law against this activity, I'm happy to say.  However, if my state did not, then:

          1.  Is there a Constitutional requriement that states pass laws against cruelty to animals?

          2.  Is there a compelling state interest in the prevention of cruelty, aside from morality?

          3.  If there were no law against it, could I then not claim the right to be cruel?
          •  All laws are at some level based on morality (none)
            Robbery? Thou shalt not steal. Murder? Thou shalt not kill. Animal cruelty? Thou shalt not inflict suffering.

            Morality is nothing more than a common social consensus about right and wrong.

            Now if we hold a right to (bodily) privacy to be fundamental, it probably arises from some implicit underlying moral principal. Like you have the right to do with your body as you wish as long as it does not hurt others.

            It seems that such a notion of privacy is central to Roe and Griswold, but it also seems that it should apply similarly to at least some forms of drug use.

            So the correct question is not

            Is there a compelling state interest in the prevention of cruelty, aside from morality?
            but
            What are the moral premises of the law, and do we apply them consistently and take them to their logical conclusions? Or do we declare certain rights to be fundamental, but then apply them selectively?

        •  A cat isn't sentient in the legal sense. (none)

          It's property.

          •  Legal shmegal (none)

            I like empirical fact, objective reality.  Legal definitions all too often lack any connection to reality as it is.  Reality as it IS is all that matters.  Everything else is a lie.

            "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

            by praedor on Thu Nov 03, 2005 at 02:02:46 PM PST

            [ Parent ]

          •  It's sad... (none)
            but true.

            Maybe one day this will change.
            People should be allowed to do whatever they want to their animal "property."

            This includes castration, de-clawing, tail bobbing, ear pinning, etc etc.

            It's cruel and disgusting.

            But it reminds me of a line from an old movie which I forget. "This is America, and in America if a man wants to beat his own animal, that's his business."

            •  Depends on what on means by cruelty (none)
              I think that you meant to say that people should not be allowed to ...

              I can't agree about castration, de-clwaing, tail-bobbing, etc.  

              Sterilization is, in particular, not just un-cruel, but an act of kindness.  The cruelest act is allowing a pet to breed when one is unwilling to assume responsibility for caring for the offspring.

              I own a Rottweiler, whose tail was bobbed within minutes of his birth.  It is a simple procedure that does not harm the puppy.  Even if just for aesthetic purposes, I have no problem with it.  Brututs is a beautiful, happy, friendly pet, and I love his stumpy, bobbed tail along with the rest of him.

      •  feline counterexample (none)
        This isn't really isn't a fair counterexample. Cats are property, but property that can suffer. The law is aimed at protecting the cat, not at limiting your actions. Now if you wanted to copulate with a cow in a non-cruel manner, that might fall under the rubric of privacy rights.

        "To what extent the government can regulate morality" is a better question. Drugs can be considered immoral by some, just like abortion and birth control.  The arguments are stunningly similar.

        Now you could argue that drugs are socially damaging in some way (even pot? steroids? 'shrooms?), but others would (and have) made the same argument about BC and abortion.

        I'm waiting for a supporter of the notion that BC and abortion are Constitutionally protected to take a similar stand for at least some drugs.

        This is why I find the notion that BC and abortion are clearly Constitutionally protected to be dubious - because this idea of a right to privacy is applied rather selectively, even when you narrow it down to the issue of persons' right to do with their body as they wish.

        Note: none of the above constitutes an argument that that BC or abortion should be illegal.

        •  I just have to say. (none)
          That I have seen it the same way for some time, and it's refreshing to see someone else with a clear head in this world.

          Down below I guess I just asked the question. "And how the hell does the right to privacy apply to abortion?"

          I know the answer is that "you can do to your body what you like", but obviously that's not true for most other circumstances and it's too easily argued that the fetus need not be considered a body part, but a separate body.

          But I agree, if you legalize abortion, for god's sake why not pot?

          •  cats and fetuses (none)
            I know the answer is that "you can do to your body what you like", but obviously that's not true for most other circumstances and it's too easily argued that the fetus need not be considered a body part, but a separate body.

            Bingo. And then the fetus could be just as protected as the cat in the counterexample that supposedly refutes my point about drugs. If a cat is worth protecting in a manner that overrides privacy rights, why not a fetus? The whole privacy argument is shaky and inconsistent.

            •  Refutes your point? (none)
              I actually intended my example to buttress your point!  By counter-example, I meant a counter to the notion of a generalized Constitutional right to privacy.  Lacking any other interest, the state may "legislate morality" in the case of cats and of drugs or gambling (to add another example) as well.
              •  oops.. (none)
                I read this as a counterexample to the notion that drugs are a matter of privacy similar to Roe & Griswold - ie, I thought that you were saying that drugs are more like animal cruelty.

                I agree that animal cruelty is another instance of the government restricting privacy (and property) rights, but I think that Roe and Griswold are best understood under the narrower rubric of bodily privacy.

  •  What about Lochner? Hell, Marbury? (none)
    These guys have no principles.  They just don't like change -- though there are some true believers who think abortion is wrong in all events and are happy to take a swipe at it whenever they can.

    But those that pretent to be constitutional "strict constructionsists" are just full of hooey.  It is nonsense.  Roe?  Sure, clearly, nothing in the Constitution on reproductive health.  Griswold?  Nope, still nothing on conctaception.  ANd, where does it say in the Constitution that the courts get to trump the legislature in interpreting the Constitution?  It ain't there.  No sir-eee.

    To believe that the Constitution is not a living document that must be interpreted in accordance with society's evolving demands is just plain silly.  

    Which framer was it exactly who thought the Constitution should be applied for the next 200+ years exactly as written?  Why, Madison and Jefferson tried that canard months after it was ratified, only to be hooted down by that crazed liberal George Washington.

    Jeez.  When will these loons shut up already?

    •  Marbury v Madison (none)
      ANd, where does it say in the Constitution that the courts get to trump the legislature in interpreting the Constitution?  It ain't there.  No sir-eee.

      You're right, the question was up to the SCOTUS to decide.  And guess what?  They said that the SCOTUS wins!

    •  Evolve schmolve (none)
      The Framers, to answer your question, did not believe that the Constitution would govern as they had written it.  They put amendment procedures in there for a reason - to allow the darn thing to be amended.  The problem is that we love the document too much and don't amend it often enough.  The amendment provisions are a high enough bar that I don't worry about too many silly amendments passing - Prohibition is a glaring exception.

      So, the Constitution is a living document for you.  It should reflect the changing demands of society?  That is real hooey.  How do we decide what the evolving society demands?  I guess that would be a majority vote?  Okay, several majority votes over some defined period?

      Under that jurisprudential theory all the pro-lifers have to do is show that they out number the pro choicers.  Bingo, the right is gone.  Or, those who decide that freedom of speech is no longer part of our evolving society can demand the Constitution be reinterpreted?

      I think not.  There are problems with how conservatives view the Constitution, but they are right about one thing, the words matter; their definitions are not plastic to be bent by each generation.  If that is the case, the Constitution is a guarantee of nothing.

      •  And all men are created equal (none)
        Meaning men are more equal then women?
        •  Actually, technically, they are (none)
          since the Equal Rights Amendment was never passed...under equal protection analysis, distinctions based on sex don't have to withstand strict scrutiny as distinctions based on race do...just intermediate scrutiny, unless this has changed a lot in the last 10 years, which I don't think it has.
      •  "we love it too much"? (none)
         I would argue that the reason the Constitution isn't amended more often is that people argree with it as it is...and as it is means as they feel it to mean.

         I believe that there should be a doctorine of Implied Ratification, meaning that the choice not to amend can be seen as approval. Since the amendment process has been available and not used(very often), it means that each generation implicitly ratifies those provisions that they have not changed.

         I believe this is a much more defensible position than saying "we love it too much", or as the so-called originalist would put it, "we approve of it as it was understood way back when".

         For example, if we were to ask Americans if they feel the 1st Amendment Free Seech Clause applies to the internet, a wide majority would say yes. I bet only a very small percentage would say no because the internet was not around when the 1st Amendment was ratified.

         I believe Americans expect a certain amount of elasticity of principle, and efficency of application, in the Constitution.

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

        by sebastianguy99 on Thu Nov 03, 2005 at 03:30:53 PM PST

        [ Parent ]

      •  Love hurts? (none)
        The problem is that we love the document too much and don't amend it often enough.

        I agree entirely on the first part of your post, that the framers intended the amendment process to be the vehicle for securing "new" rights.  Where I leave you, is in saying that it would be good to have it amended more often.  I view the high hurdle to amendment and our reverence for the document to be our surest safeguard of our liberties.  If the process were easier or taken less seriously by the public, how easy might it be for a majority to grant powers to the government in times of crisis that we would later regret.

        This is also a strong reason for disliking "judical activism."  When a body, be it the legislature or the SCOTUS has the means to easily grant us rights, then they also have the power to take them away from us.  Therefore, I say that neither should be entered in to lightly.

  •  Nonsense to suggest Griswold is safe (none)
    The author of the quote Armando cites conveniently ignores the fact that while the right to use contraception appears safe for the moment, access to contraception is currently under siege across the nation because of fundamentalist pharmacists who refuse to dispense, and because of a government system of prescription-drug regulation that makes is exceptionally difficult to obtain prescrption drugs except through a pharmacist.

    Griswold's precedent, it seems to me, has never before been so crucial, and not just because of its relationship to Roe.

  •  Don't agree that the juxtaposition between (none)
    privacy rights and economic rights is correct.  We like to see money at the base of all evils, but the rights of the individual have to be contrasted with the rights of the group.  And, since the conservative philosophy holds that the individual is ipso facto evil (guilty of original sin or anti-social, take your pick), whatever promotes the interests of the group (regardless of how big or small) have to be good.  In other words, virtue is what benefits the group, whose highest priority is obedience.  Regardless of what the individual wants, if it's not consistent with the group's interest, it's worth less.  Group values are always more important and that's why corporations are deserving of preference and why a married couple is also more deserving of social support than a lone individual.
    From this perspective, rights follow from participating in a group.  That's why citizens have certain "human rights" and non-citizens have none.
    The liberal notion that the individual human being has certain inalienable rights just by virtue of being human is anathema to this way of thinking.  Rights have to be earned by submitting to the authority of the group.  They're a reward for being obedient.
    There is no free lunch.  Those who do not subordinate themselves to social strictures do not deserve to survive.

    Forget "GOD, GUNS, GAYS, GIRLS & GETS"

    by hannah on Thu Nov 03, 2005 at 12:04:56 PM PST

  •  Not so sure about Equal Protection (none)
     I find the arguments for deciding Roe under the Equal Protection Clause unpersuasive.

     A claim under the Equal Protection Clause basically asks 3 questions:

     1.How does the government classify people?

     2.Level of scrutiny for the government's actions?

     3.Has the government met it's burden under that level of scrutiny?

     Under a Substantive Due Process claim we basically ask:

     1.Has the government taken away a person's life, liberty, or property?

     2. Does the government's justification meet a high level of scrutiny?

     The basic contention of the "pro-life" camp is that there is no right of privacy at all. So under the Equal Protection analysis it is much easier to say no abortions for everyone.

     Under a Substantive Due Process challenge, the court is forced to examine the very meaning of "life, liberty, or property". That is how one can reach the 9th Amendment in the first place.

     So one analysis is asking first,whether or not the government is treating everyone the same, wera as the other asks first,is there a violation of a right?

     

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

    by sebastianguy99 on Thu Nov 03, 2005 at 12:05:49 PM PST

    •  Response (none)
      but this is why Equal Protection is ultimately more progressive, if by "progressive" you are including fighting for the rights of minorities without political power.

      Under substantive due process, you look at whether there was a violation of a right, true. But what is a "right", anyway? Conservatives might say that terminating a pregnancy is not a "right", but the right to hire or fire anyone you want for any reason is a fundamental "right". So just because due process protects "rights" doesn't make it progressive, since "rights" is such a flexible term.

      However, with Equal Protection, there is less of a way to get around protection of minorities. It's saying (or should say) -- the majority has imposed this law on a discrete group of people. Taking into account the legislature's reasons for passing the law, would it have passed if it applied to the majority as well?

      Under this formulation, the abortion right would be much better protected under Equal Protection, because a court could and should easily find that the law only applies to a discrete group that would not have passed if it applied to everybody (i.e., if men could become pregnant).

      Dems will fight for a Renewed Deal with the American people.

      by Hoyapaul on Thu Nov 03, 2005 at 12:15:50 PM PST

      [ Parent ]

      •  I guess the difference in preference (none)
         is whether to start the analysis at the point of asking ,"is there a right?" Or starting out with  asking are women a "discrete and insular minority?"

         Given that the level of scrutiny for gender is intermediate, rather than heightend, I'm not so sure of the outcome.

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

        by sebastianguy99 on Thu Nov 03, 2005 at 12:30:44 PM PST

        [ Parent ]

        •  As long as (none)
          gender is given "intermediate" scrutiny, I agree. However, it could and should have been applied strict scrutiny in (for example) Roe.

          This is I believe what Justice Ginsburg has long been arguing, and her opinion in the VMI case is an attempt to nudge it in that direction, in my opinion.

          Dems will fight for a Renewed Deal with the American people.

          by Hoyapaul on Thu Nov 03, 2005 at 12:40:19 PM PST

          [ Parent ]

  •  Reproductive Rights ARE Already at Risk (none)
    The fact that a conservative agenda has already blocked a woman's ability to receive the RU86 or the "Morning After Pill" over the counter (even if she is over 18!), is proof that conservatives have an agenda to take reproductive rights off the table for all women. The other issue is providing birth control to underprivileged women by not covering it with Medicaid or health insurance plans. This is ridiculous and this should put everyone's radar on high alert. Their agenda is clearly way more right of the majority of the American people. There is no reason why RU86 should not be approved for over the counter use in the U.S. It stops conception and is nothing more than what birth control pills already do. It's completely safe (as proven by the FDA and European countries that have had it available over the counter for years).

    The fact is they want women to be breeders and men to do whatever they want. Promiscuity is fine in men but not in women. What about all those men who get Viagra through their health insurance (including, to our dismay sex offenders on Medicaid!)? That's perfectly okay because Viagra promotes men's sexual well-being and spreads the "seed," literally. Well, if that's the case than no man who has a wife over child-bearing years should be allowed to get Viagra. It's against the Bible!!!

  •  Religious conservatives aren't (none)
    There is a religious conservative group that fits the description here.  There are other conservatives who do not fit this model well.  Many conservatives do not believe that religious conservatives are very conservative.

    Also, it is a peculiar right to privacy that protects my right to own contraceptive pills but not my right to own a machine gun (as opposed to my nonexistent right to use one to poison people or the other to shoot people).

    George,
      deliberately be difficult

  •  re: contraception. (none)
    "The Court won't eliminate the basic "constitutional" right to contraception... "

    Sure you don't want a judge to get the clap when out on the town.

    the paradigm has didactic proactive synergy.

    by realheathen on Thu Nov 03, 2005 at 01:41:13 PM PST

  •  If people's SUPPORT secures a Right, why worry? (none)
    The quoted argument says, 'The Court won't eliminate the basic "constitutional" right to contraception because that right already has a more secure political footing than the Court's support for it: namely, the people's support for it.'

    If this was anything other than a smoke-screen, Roe would be totally secure.  Polls consistently say about 55% of Americans support "Choice", and above, someone pointed out that 53% would not confirm Alito if he'd overturn Roe.

    Make y'all feel secure in that there 'right'?

  •  Hear ye, Hear ye... (none)
    While the disdain from the Left was based on the belief that the Kelo decision created an opportunity for corporations to take advantage of the "little guy," the Right saw it a question of economic rights, indeed, as Jack Balkin described it, the creation of substantive due process protection for economic rights.

    Liberals of course have a different view. Economic rights are protected through the just compensation clause of the 5th Amendment and the political process. It is our view that the Bill of Rights concentrated on individual rights for a reason, the rights of individuals can be trampled by the majority. Those holding economic rights generally have the wherewithall to defend their interests from majorities in the political process or through other means. And it seems clear that the Framers were correct in their assessment.

    Now hear this, King Armando hath declared that all ye who disagree with Kelo v. New London are not good Liberals, or else thine eyes are benighted and thou dost not behold the Royal understanding of the 5th Amendment. Oh ye of little Constitutional understanding, ye may have been wooed into the belief that the decision in Kelo v. New London is bad just because a big corporation won over a "little guy". Trust in King Armando, for he is sent by our Secular Lord to bring Constitutional Truth to Liberals, and he hath spoken thusly: "Kelo was correctly decided." Let all good Liberals accept this Truth into their hearts, and all those who cannot shall be henceforth called "Conservatives". King Armando hath spoken. <pfft%gt;

    •  Property rights? (none)
      I have some trouble with eminent domain when it is applied rather broadly in either direction. I think that there are some externalities that must be taken into account, for example, I think it is criminal for speculators to grab up property and charge ridiculous prices when they know a project is coming through, or for squatters living on grandfather clauses holding out for more money. There needs to be some flexibility in serving the public interest in terms of repairing and enhancing the public infrastructure. This should not be carte blanch for McDonalds to systematically take over every highway intersection, however.

      I think some of the need for eminent domain comes from the fact that we undertax property. If property were to adjust to the market value for whatever price was bid on it last, even if refused, and people had to pay taxes based on that value, I think eminent domain would be largely unnecessary. Some people are just nuts and wouldn't buge regardless.

      Something to consider is that the idea of property is an artifact. Property is owned by individuals only to the extent that it can be protected either through the use of violence, or the threat of violence, by the state. The reason property has any value at all is because the state confers ownership and defends it through rule of force. This argument favors property tax funding the military.

  •  Constitutional Amendment (none)
    I've asked this before.  Given the GOP's position on Griswold, from a political standpoint, why don't the Dems push for a constitutional amendment guaranteeing the right to privacy.  How can a politician come out against "the right to privacy" without turning off many moderates.  This would be a really tough political position for most GOPers.  
    •  I suspect (none)
      two things are problematic:

      1. A constitutional right to privacy would be turn into a proxy for the abortion war. No one would be fooled into thinking this wasn't precisely about abortion, so you'd have the abortion fight over a constitutional amendment. That's not necessarily a bad thing, but I"m guessing unwinnable because of #2:
      2. Constitutional amendments are super difficult to pass. They have to be ratified by state legislatures - I think 3/4? - within a certain time period. The ERA had widespread support but couldn't pass this hurdle. I have a hard time imagining which of the states outside of the blue states (which are not 3/4!) would pass such a thing.
      •  and because (none)
        conservatives could point to its defeat as proof that the right does not exist in the Constitution.  

        Also, about the time bar - that is entirely up to Congress.  ERA didn't pass in part because Congress imposed a time limitation on its passage.  The last amendment occurred in 1992, but that was because no time bar was placed on it - various states had been ratifying it for decades (or was it over a century?  It was something ridiculous.).

      •  The ERA was redundent (none)
        The right to privacy has been a burr under our national saddle for decades, and a black and white  solution would settle the issue.
        Constitutional Amendments are supposed to be difficult, as they generally take power from the majority (as defined by the democratic process) and give it individuals in the form of rights (which are a protection from the majority) which restrict the majority from making laws which satisfy their urges (inference of mob rule intended).

        I would argue that we've had some silly Amendments, which imply that the process is not difficult enough.

    •  how would you word this right to privacy? (none)
      How would you ensure that this right does not have unintended consequences, like allowing drug use? -  it's your body! it's your home!

      The right to privacy seems to be applied very selectively, and I think that no one wants to contemplate the full implications of a completely general right to privacy, which could eliminate much of the government's regulatory ability.

      As long as the right to privacy is implicit rather than explicit, then the courts can pick and choose when to apply it, based on prevailing mores.

      •  Thinking Small (none)
        This would be a great issue for Democrats to run on.  The GOP would try to turn it into a proxy for abortion.  That would be great!  Dems could say "This has nothing to do with abortion, this is about a right to privacy.  If you're opposed to this, you  must be opposed to my right of privacy and thus are bad."  This is a total winner at the polls because even some people who oppose abortion rights would have to say "well, I'm certainly in favor privacy!"

        As far as how to word it, that's an issue for smarter people I'm afraid.  But certainly good constitutional lawyers could come up with something efficient and effective.

  •  Specter recently announced... (none)
    No confirmation hearings for Alito until 2006, so we've got some time.
  •  Arguing with conservatives (none)
    In my discussions with "conservative historians", what I get is a discussion of Hamilton's writing in the federalist papers that the consitution be interpretted rather literally, and that the 10th amendment trumps the 9th amendment, because the 9th amendment contains nothing that can be interpretted literally, and therefore, meaningless.

    In my own analysis, the concept of property can be extended to privacy rights. Your body is your property to do with as you like. The limits to that are what economists call externalities, effects to people who have no say in a decision but are affected by its consequences. The concept of property is central in understanding the constitution. Rights are perceived as controls over property. Under this framework it is not a stretch of the imagination to see that right to privacy entails control over one's own body when it does not affect anyone else.

    The separation of church and state also makes it clear that religious superstition or taboo is not an acceptable externality, not grounds for reversing privacy rights.

  •  WTF???? (none)
    The Court won't eliminate the basic "constitutional" right to contraception because that right already has a more secure political footing than the Court's support for it: namely, the people's support for it.

    I'm not a lawyer and I don't play one on television, but what the fuck does the people's support have to do with anything?  If that was a compelling consideration, legal rulings would be popularity contests and the choice debate would be mute.

  •  The poor are getting screwed by the Republicans... (none)
    Sometimes, in my paranoia,I think I'm the only one that believes that "Democrats" should start to speak up for the people who are getting screwed in our society?

       http://katrinamemo.blogspot.com/...

  •  This has been one of the best constituional (none)
    law discussions I have encountered since law school.  Way to go Armando and all the posters.  Do it again sometime soon.
  •  What does "Activist Judge" mean? (none)
    Armando - Thanks for an excellent post.  Perhaps you can help me understand what the wingnuts mean by "activist judges"..... do they mean they don't want judges that will set new precedent, extend new rights, such as civil rights for homosexuals?  Didn't conservative judges set new precedent and extend new rights when they ruled that cities can use eminent domain to take property for redevelopment projects?  I'm just not getting it.  Any light you can shed on this term and what wingnuts mean by it, would great.  I feel like they speak in code and sometimes I can't understand what the code means.

    Thanks!

    •  Whether a judge is activist (none)
      is in the eye of the beholder.  I would guess that somebody who pushes an agenda or political/judicial philosophy to reach predetermined outcomes can be considered an activist judge.  Thomas, Scalia, Douglas and a few others can be called activist. Usually the term "activist judge" is a epithet hurdled at judges who don't rule your way.  
  •  Separation of Corporation and State (none)
    What kind of idea is it to have a government that grants rights and privacy to corporations but not to individuals?  How could it have ever happened, since the individuals are the ones who vote.  Why would they not vote for their own interests, a government by the people and for the people.  Why governemnt by the corporations and for the corporations?

    I read that political contributions are "allowed" under the freedom of speech right.  In other words, a person/corporation can give large amounts of cash to political organizations of their choosing.  

    Obviously, if hundreds of thousands of dollars are given, that is no longer freedom of speech but flat-out bribery.  

    Corporations should not be allowed to contribute to political campaigns.  We need separation of Corporation and State in this country.

    Corporations should not have any rights.  They are not people.

    --> Just a middle age woman practicing her free speech.

    by Thea VA on Thu Nov 03, 2005 at 03:15:18 PM PST

  •  heh (none)
    But don't worry he says, no one will ever challenge it.

    it's like ted stevens with that income tax records nonsense a while ago - oh don't worry; we wouldn't avail ourselves of that ability...

  •  careful with the term "economic rights" (none)
    In most of the world, economic rights are not property rights, but are a subset of economic, social and cultural rights- which include such things as the right to food, the right to housing, the right to health and the right to education, and more generally, the right to an adequate standard of living.  It is about the right of all people to economic well-being, not the rights of property owners.
    The United States stands virtually alone in the world in not recognizing these as rights.  (Many other countries don't respect them in practice, but accept them in principle).  In the US, to the extent that they exist,they are "entitlements", something to be given and taken away at the whim of the legislature.
    But they are fundamental to human diginity, every much so as the right to privacy.  If we ever do get around to modernising our bill of rights (state of the art for the late 18th century-antiquated for the 21st), these types of economic rights will have to feature prominently.
    I know there is as much chance of that happening in this century as of developing a functioning, multi-party democracy, but the point remains

    "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."- Franz Kafka, "Before the Law"

    by normal family on Thu Nov 03, 2005 at 03:52:22 PM PST

    •  Texas has no zoning laws (none)
      and New York State allows the formation of villages.

      You can get a job or two or three.

      You can save money and invest in stocks sold on the major stock exchanges.

      You can buy land in Texas or New York and grow great organic food and medical herbs.

      You can build fine stone houses and great schools.

      You can even sell entry to your paradise to rich people and build a small hospital with the proceeds.

  •  I never got this. (none)
    There is a right to privacy in the Constitution.
    Yes. It's there in the 4th amendment at least.

    I understand how the right to privacy applies to contraception, sex, doctor-patient privilege, etc.

    Now, I never have understood why the right to privacy applies to abortions.

    I believe we have to right to privacy, of course, and maybe women should be allowed to have a very early abortion, but whether she does or not, it has nothing to do with the right to privacy.

    Sure, she can keep it private, but I can keep the fact that I murdered someone private. It doesn't mean I have the right to murder.

    Hey, maybe I'll be called a troll just for even bringing this up, but I don't believe abortions have anything to do with the right to privacy.

    •  It's considered a health care decision (none)
      The right to privacy has to do with the right of a woman to make health care decisions regarding her own body by herself and for herself, with no one but her doctor's advice.  It is her private decision whether to carry a pregnancy to term - that is the thinking, as far as I can tell.  

      I don't know if you are a man or a woman, but assuming you are a man, consider for a moment the risk of carrying around a 30 lb bowling ball 24/7 for 9 months (and the risk to your health, wellbeing, career, etc in doing so) every time you decide to have sex.  This is a tiny bit of the risk that women go through - and I don't mean to equate the decision to have an abortion with dropping a bowling ball, (give me a little lee-way here before snarking and flaming, please!).  

      In terms of privacy, should the government be able to tell you, you MUST carry a 30 lb bowling ball around for 9 months if you decide to have sex? And again the next time you have sex, and again the next time you have sex?  Or should the decision to not do so, be a private decision that you make based on your health, your well being, your willingness or unwillingness to do so?

      And I know this is a rather bad analogy.  I know a child is life and not close to a bowling ball.  Believe me, I have children and I have had an abortion.  I understand all the implications and issues involved. Just trying to get at the essence of why it could be a privacy issue.  

    •  Not a troll (none)
      Just stupid IMO.

      Consider your assumption - abortion equals murder.

      So it depends n the compelling state interest. Since a fetus is not a life - then your argument does not stand.

      PRetty simple no?

      The SCOTUS is Extraordinary.

      by Armando on Fri Nov 04, 2005 at 04:53:02 AM PST

      [ Parent ]

  •  So you mean that... (none)
    ...when republicans say they are the party of "Getting government off our backs." They don't mean it?

    I am shocked.

    [ Anyone who thinks my bark is worse than my bite, has never seen me bite. ]

    by dj angst on Thu Nov 03, 2005 at 07:39:47 PM PST

  •  Thanks 4 posting this-very important-dude=wacko (none)
    This guy's a total wacko and completely unacceptable for the high court. Thanks for posting this Armando. It's an extremely important issue and completely unacceptable. period.

    Go Kossacks! Time to Stand Up, Fight and Kick some SERIOUS Ass! Big Time. Protect Privacy, Roe, Choice, Civil Liberties and Unalienable Human Rights as Citizens! It's Our Life, Country, Democracy, Dammit! Save the Republic!

  •  The privacy amendment post (none)
    There is an idea floating about a privacy amendment to the US constitution

    Conservatives propose ammendments many times not because they will pass but because it conveys a message about their beliefs. In the 1980's the moral majority proposed an amendment to ban abortion. Conservatives argue that the constitution at its founding didn't allow consenting adults the right to have gay sex AND they propose an amendment to ban civil union and gay marriage. The constitutional amendment to ban gay marriage would not pass the US Senate either but they propose it.

    Framing would go like this "If the radical right continues to attack our personal liberties we will propose a privacy amendment". Now that you have a frame you relate everything to it. The Patriot Act is now part of the radical rights attack on privacy. Big insurance could use DNA to deny health insurance and we have no right to privacy? Companies sell your financial records and you have no right to privacy. See?
    You don't fight the right on their ground when it comes to privacy you make them fight on yours, where Americans are afraid about their privacy.

    Every time a judge rules that credit card X can sell your information, we scream see the radical right is assulting your privacy. Make minor cases major, people don't want their info sold.
    The right doesn't argue to ban abortion as much as they try to peal off support ( example: do you wan't your daughter to get an abortion without you knowing?) Emulate the tactic but fight on OUR ground!!!

  •  Yes on the right to privacy (none)
    No on framing it as "pro choice or anti choice."  By framing this as a single issue of "will you support Roe v. Wade," it obscures greater concerns, and plays into the Repug/Hatriot polarizing/smoke screen agenda.

    The right to privacy is a fundamental right that I believe is in very real danger under a Scalito confirmation.  This is not a right under the constitution, but it nonetheless is an "implied power" that has a 40 year precedant behind it.

    I think we need a judicial amendment to the constitution, saying there is a right to privacy.  At this point, that is the only way to ensure the protection of this essential right.

    And a state won't ban contraceptive devices?  HA!  Pharmacies already are not filling in prescriptions for The Pill, and I know some states, such as Alabama and Mississippi, make it illegal to sell sex toys.  I really believe they could ban the sale of condoms.

    Ugh, the thought just makes me shudder.

  •  Right to Privacy (none)
    If we were to propose an Amendment clearly establishing a "right to privacy" what would it say?

    I don't think we have one via precedent until and unless we know what the limits are. Is it simply a statement on reproductive rights? Or does it extend beyond that? What is the underlying theory? Even the UN is a little fuzzy:

    Article 17

    1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
    2. Everyone has the right to the protection of the law against such interference or attacks.

    Arbitrary and unlawful are terms which can be manipulated by local custom and (obviously) law.

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