The judicial logic and constitutionality behind Roe vs Wade is very clear.
Yes very clearly wrong, and rather clearly based on something other than the actual constitution.
Elroy put in well
" the judicial logic and constitutionality behind Roe vs. Wade is one of the least clear of all well knows SC cases.
1. The "right to privacy" itself is nowhere mentioned in the Constitution. Free speech, bear arms, voting all have specific amendments which clarify said rights. Their is no specific right to privacy."
Message 22071847
As for your response to his post
That's right its not mentioned but it is clearly inferred in several amendments; that is the 3rd........."no soldier shall be quartered in a house without the consent of the owner"; in the 4th........"the right of the people to be secure in their houses against unreasonable searches and seizures"; and the 5th....the right to not incriminate oneself.
There is no general right to all types of privacy. The 3rd amendment gives a right not to have soldiers quartered in your home without your consent. That's more of a property rights issue than a privacy issue but if you want to consider it a privacy issue its a rather specific one. The 4th does deal with privacy but again in a specific way, same with the 5th.
Right to privacy is also protected by virture of the 9th amendment.
It doesn't mention privacy. It does make a much more general statement "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Wikipedia has a decent article about the 9th amendment.
en.wikipedia.org
"It has been considered that the 9th Amendment was put in place as a notice to the Congress that they were still a body constrained by a set of enumerated powers, and to the Federal Courts to ensure that the Congress did not forget.
In recent times, it has been argued that the Ninth Amendment, particularly when read in conjunction with the Tenth Amendment, emphasizes that the Bill of Rights is not a grant of rights from the government to the people. Indeed, if the Declaration of Independence is a guide, the Framers did not understand rights as being conferred by governments or legal documents, but arising ex deo, independently of the laws of man. Instead, it is argued that the Ninth Amendment is an enumeration of some of the most important powers not granted by the people to the Federal government (it is important to keep at the forefront of one's mind, when discussing the history of the bill of rights, that it applied only to the Federal government prior to the Fourteenth Amendment; see Barron v. Baltimore), and that the Ninth Amendment should be interpreted as addressing Federalist fears that enumerating rights might lead some to conclude that only those rights listed can be protected, just as the Tenth Amendment addresses anti-Federalist fears that the general government would swallow the states."
Those interpretations seem fully grounded and reasonable.
You probably hold to this one
"Another interpretation holds that the Ninth Amendment recognizes that certain natural rights are retained by the people and cannot be abridged by any government. This interpretation argues that Ninth Amendment, in conjunction with the Fourteenth Amendment, permits the judiciary to strike down state laws which abridge certain rights."
Again wikipedia does a good job, when it points out the problem with this interpretation.
"The difficulty with this interpretation is that, because the Ninth Amendment does not specify which rights it protects, and since almost any law that has any practical effect will limit someone's freedom of action, which they might term a "right" - such a power would create an almost unlimited ability of the Federal Judiciary to strike down laws that a given judge or group of judges disliked."
Or in other words if it is interpreted this way it amounts to Bork's "inkblot".
But while I think you like that interpretation in the abortion issue I don't think you would like to apply it very generally.
The general principle that the government should not abuse our natural right even when they are not protected by the constitution is a very good one. I wish it would be more widely held. But the idea that the federal judiciary is empowered to strike down any law without any specific constitutional reason is a dangerous one that if applied broadly would our system undemocratic and concentrate far to much power in to judges hands. It strikes at the important principle of having a government of laws not men with arbitrary power.
But lets assume privacy is a natural and a constitutional right. Privacy does not equal abortion.
Privacy is the ability, power or right of being able to hide things from other people's knowledge, or to avoid being seen or noticed. Now if you believe in an extensive privacy right it would be very difficult to enforce laws against abortion, but it would be similarly difficult to enforce many other types of laws esp. if the activity to be outlawed is not committed in public.
The idea that the right to privacy equals the right to an abortion was entirely invented by the courts. If we have a constitutional right to real privacy in general than I shouldn't have to disclose my income to the IRS, but we don't have such a general privacy right under the constitution. Instead we have specific rights related to privacy like our rights under the third and fourth amendment.
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privacy
n 1: the quality of being secluded from the presence or view of others [syn: privateness, seclusion] 2: the condition of being concealed or hidden [syn: privateness, secrecy, concealment]
Source: WordNet ® 2.0, © 2003 Princeton University
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privacy (uncountable)
1. The state of being private; the state of not being seen by others.
en.wiktionary.org
Tim |
