Phydeaux
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quote:
ORIGINAL: dcnovice
quote:
IF we the people wanted to have a right to privacy - or a right to abortion then we should have passed such a right in the method the constitution envisions for such an action- amendment. Inventing a right out of whole cloth short circuits the political debate.
Does the right to privacy--or to choose an abortion or to use birth control or to marry outside one's race or to have gay sex, all examples of things legislators have tried to prevent--really come from whole cloth, or is it rooted in the Ninth Amendment?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Here is an exegesis on William Rehnquist's (Chief Justice of the United States) dissent on relating to privacy. Please read it. Rehnquists writing is even better but..
http://www.endroe.org/dissentsrehnquist.aspx
Rehnquist made a number of points:
1. At the time of the passing of the 14th amendment, there were laws against abortion in every one of the 36 states. Yet there were no applications of law in this area. The only conclusion possible was that the drafters did not intend to have the 14th amendment withdraw from the states the power to legislate abortion.
2. Rehnquist said it brilliantly. ""But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective.
3. Areas of explicity enumerated constitutional rights were usually evaluated under strict scrutiny. Claims upon unenumerated rights upon rational relation.
Rational relation was the usual standard applied on privacy issues claim arousing out of the 14th amendment. Under this level of scrutiny, the state most only prove that its low bears a rational relation to a valid state objective.
So, in Roe V Wade., the Rehnquist is saying that the standard that should have been applied is that the state has said it has an interest in protecting unborn children. Does the abortion prescription have a rational relation to that object. He held that it did.
4. Conversely, contrary to usual practice, in Roe V Wade the court required Texas to the strict scrutiny standard. In other words, the state had to prove that its laws were necessary to accomplish a compelling state interest.
5. The court then ruled that texas's interest did not become compelling until the viability of the fetus was established.
The reason that I saw that Roe v Wade is a legal clusterfuck have nothing to do with abortion:
1). The court is asserting the right to abortion (and hence to privacy) is a fundamental right. However unlike all other fundamental rights - nowhere is it so enumerated. So the court has NOTHING to go on to decide what the limits and parameters are.
this is why I said the right to privacy was more or less invented out of whole cloth.
2). In Roe v wade the court tried to weigh objectives - what was a 'compelling' interest. This injected subjectivism into the judicial arena which is a function of the legislative branch. this is where judicial activism springs from - because things like is "x" compelling becomes a subjective question - dependent on the views of any court at the time it is consitituted.
Splitting a pregnancy into trimesters and ruling that its legal in this trimester but not in this- is a legislative function.
3. By so ruling, the courts forestalled the intended political process of an amendment process. It also forestalled potentially superior legislative efforts and it forestalled states forming a consensus. Democracy is like a huge test tube laboratory - and Roe v Wade froze the debate. Additionally, it deprived people the opportunity to chance to duke it out themselves, and the catharsis that the political process can provide. (acknowlegemnet that elections have conswquences, for example).
And it deprived us the opportunity to form a consensus around what are our privacy rights.
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RE: Bravery and fortitude in Texas - 
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