I’m not saying that. I’m just wondering how the text of the due process clause in the 14th amendment gives the Supreme Court the decision.
You have to remember the law isn’t what the constitution says it is, it is what the SCOTUS says it says.
For instance, most people don’t realize we came close to passing an amendment to the Constitution to allow for the regulation of child labor. Now most people reading that would say “What?” It makes perfect sense to us that Congress ought to be able to regulate child labor. But at one time, they did not have that power.
So what changed? Since there was no amendment, how did Congress get that power? Because the courts changed their minds. Or rather you have to look at the Supreme Court, especially as an ongoing constitutional convention.
SCOTUS ought to interfere with a legislative determination at odds with the Constitution; in doing so, they are protecting the higher legislative rule (the Constitution), one established by the appropriate legislative body. They are not “legislating” by declaring a law unconstitutional, so long as there’s a legitimate basis for it–that’s their job, or at least it is when they’re not poking sticks under penumbras looking for rights that might be lurking about.
Here, again, SCOTUS screwed the pooch and simply ignored the “for public use” wording in the fifth amendment since it inconveniently prevented the government from seizing personal property to use as it saw best. This despite the fact that it was handing over private property to another private entity to use for a development project (in theory, anyway, since the deal ultimately fell through, and the property seized from the unwilling rightful owners ultimately became a vacant lot; another happy ending from our friends on the highest court). This was some fine legal reasoning, in that it took a phrase that limited the seizure of personal property to instances where it would be used for “public use” and concluded that it actually meant “not necessarily for public use.” Another excellent example of SCOTUS not letting the actual words of the Constitution interfere with the cause of truth and justice, as they saw it.
The whole line of cases is, at least arguably, a recognition of a screw up by the Court they have been unwilling to fix.
The phrase preceding the one you quote in the 14th Amendment is important here:
When the Court first look at this, it completely eviscerated the privileges and immunities clause - leaving it essentially meaningless (see The Slaughterhouse Cases). A strong school of thought is that this phrase was intended to incoporate the Bill of Rights - that these were the privilege and immunities of citizens of the United States. Unfortunately, the Court shot that argument down.
So, out of respect for stare decisis the Court had to find other ways to extend rights guaranteed under the federal constitution to protect people from state action. They did this by use of due process, and also later by the commerce clause.
Where do they get this from in the constitution. I’d argue the original intent of the 14th Amendment, which they have recognized was subverted by the Court. Unfortunately, we won’t see them overrule the bad precedent set, and so it will always be somewhat convoluted.
Seems to me the SCOTUS finds rights under the ninth from rights they think are already implicit, albeit not stated, in the rest of the Constitution. Have they made up any right out of whole cloth and not attached in any reading of the US Constitution? Personally I think a right to privacy can be gleaned from the Constitution (although stretching privacy to abortion seems a reach). How about a right to self defense? It’s not in there you know. Only recently with the Heller decision did the SCOTUS deem it a right under the Second (talk about a contorted reading although I have no problem with a right to self defense in general).
Imagine you live in a state where the Amish take control of the government. They pass a law that you are not allowed to defend yourself. You can own a gun and such, just not use it in defense of yourself or others.
Seems to me by your strict reading of the US Constitution you would be ok with this considering a right to self defense is not explicitly listed.
Actually if you read some of Eugene Volokh’s work, its pretty clear the Court has found in favor of a right to self defense going back much further. He also makes a persuasive and intriguing argument that you can locate a constitutional right to abortion in this right to self-defense.
When it comes to refuting global warming or evolution, conservatives act like better scientists than scientists.
And it comes to denying rights to gays, they’re all brilliant constitutional scholars.
I think a right to self defense is about as fundamental a right as you can think of. I certainly have no problem with it and think it could easily fall out of the Ninth Amendment all by itself with no recourse to any other part of the constitution (I certainly do not see it in the 2nd however). The FF’s realized making an exhaustive list of rights would be silly so they added in the Ninth as a catch-all.
My issue is with Stratocaster’s ultra-narrow reading of the Constitution which seems to be if it doesn’t explicitly state it then it is inappropriate for the justices to find that right in there.
I’m with you on unnecessarily narrow readings of the constitution. I’m not with you on the idea that pre-Heller, the Court had not found a constitutional right to self defense. I’d really suggest Volokh’s stuff. I don’t agree with him a lot of the time, but he is hands down one of the best academic legal writers out there.
Got a link handy as regards the right to self defense and the court’s historic view of it? I can find plenty where Volokh references self defense but in various contexts and none I saw on this point (not that I looked terribly hard but I did look at a few).
I’ll try to dig one out later today.
Try this…
Medical Self Defense, Prohibited Experimantal Therapies, and Organ Transplant Markets.
It includes a history of the treatment of self defense under US law.
I have not read it all yet as it is 48 pages long and I am at work but reading the first few pages I found this (from your link):
Seems Volokh is finding the constitutional right to self defense in substantive due process and maybe the second amendment. I am fine with the substantive due process bit, not ok with the 2nd Amendment bit (but substantive due process is enough) and certainly does not undo Stratocaster’s issues with this (which I do not agree with).
I think we are talking at cross purposes - I’m not trying to defend Stratocaster’s view. Just saying that SCOTUS recognized a constitutional right to self defense pre-Heller.
Yes, they have constructed rights out of whole cloth–you’ve cited one. The right to have first trimester abortions largely unrestricted. I agree that too-narrow readings of the Constitution are problematic, and that interpretation subject to defined judicial processes are a practical necessity (e.g., what does “cruel and unusual” mean, even if one rightly starts with the actual words?). But numerous readings of the Constitution have not revealed to me the “first trimester” clause. To paraphrase George Will, one wonders what their ruling would have been if the human gestation period were a prime number of months. No worries, they’d have figured something out.
The “right to privacy” is one of those political platitudes that is meaningless. The right to do what privately? Does executing something in private assign it a legitimacy it would otherwise lack? Does murdering one’s child become acceptable if one draws the shades? It’s political pandering. And a reading of the Constitution does identify a federally protected right to privacy, in the fourth amendment. Nowhere else. My conclusion? The legislatures, then, get to determine that it’s verboten to peek in windows and read someone else’s medical records. And that works just fine. The legislatures, too, get to define self-defense limits, if there is nothing in the Constitution to govern it. That doesn’t mean there are no protections against abuses in such matters. It just means that SCOTUS isn’t our protector when these abuses occur–someone else is, and local instincts and beliefs should decide what works best, well, for the locals, as much as possible.
That’s the fundamental non sequitur–that we will descend into anarchy or chaos (or something) if SCOTUS doesn’t divert power to the Feds, who apparently are the only ones equipped to deal with such matters. No. The legislatures handle such functions just fine, and with the added bonus that we get to vote the rascals out if they botch the job, and the next guys can try again. No such mitigating control exists for SCOTUS, nor would it be needed if they acted within the boundaries the Constitution created for them.
So, yes, I understand that certain conclusions must be drawn from the Constitution if it is to provide any protection. But the starting point needs to be the actual words, which mean something; and if the words of the Constitution don’t provide bright lines, don’t pretend that they do (first trimester, my ass). And making shit up ought to be right out.
Oh, and the ninth has been cited as a source of a specific right, I believe, twice, both times idiotically since the same logic could have just as legitimately determined that the opposing right also existed. My advice if you ever find yourself in front of SCOTUS is not to cite the ninth as the basis of your position. Find some other argument, however remote or tenuously connected–they’ll find a way to get you across the finish line, Constitution be damned.
It’s the English language. The Supreme Court uses it to make determinations of the constitutionality of governmental actions, including whether or not an action unconstitutionally infringes upon a person’s rights. To do such a job and express it in a way that people, the government, and future courts can understand, they use the English language, including words like “privacy”. I understand you have your axe to grind, but it strikes me as extraordinarily simplistic to boil down Constitutional law in regards to privacy rights as “meaningless” and “pandering”.
The 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Nope, no use of the word privacy. Seems to me you’re simply creating something “our of whole cloth” and it’s “meaningless” and you’re simply “pandering”.
The Constitution gave the judicial power to the Courts. That power includes the powere to balance a person’s rights against the governmental interest. The Constitution created an entire system of checks and balances, which each part of government having a role to play in the determination of rights and powers.
Well, it’s hard to say that it works just fine. I suppose you could create another country with another Constitution where the judiciary isn’t empowered and hasn’t over the past 220+ years made determinations about the rights of people and the limits of those rights. Maybe you could call it “Stratocasterland”, because it certainly isn’t the USA. Because in the USA, our founders realized that the Constitution could not possibly (and they didn’t want it to) enumerate every single right, the limits of those rights, the precise amount of governmental infringement that is allowed, or any of the other myriad of determinations that the legislature, judiciary, and executive branches do every day. So they created a Constitution, with broad language and large ideals, and left it to the government (all three branches) they were creating to deal with the rest.
But you know as well as I do this does not work in practice. Tyranny of the majority and we have seen it. It is also something the FFs were particularly aware of and concerned about and a big reason the judiciary has the power it does over the legislatures. This was very much the intent of the FFs. Called “Separation of Powers”.
Tell me how well your method worked before women had the right to vote? Before blacks had any of a number of rights whites enjoyed and they didn’t. Our history is rife with certain groups being marginalized and denied political power and if you think that would not happen again in a heartbeat if people could you are deluding yourself.
Yours is a notion born of idealism with no view to the realities we have had and do face.
Tyranny of the majority ought to be overruled–when it violates a constitutional precept. When it doesn’t, “tyranny of the majority” equals democratic rule.
You’re making my point. SCOTUS should apply the Constitution as it’s written. Those are instances where SCOTUS should have applied the constitutional powers they had. The fact that they first ignored the equal protection wording (and others) doesn’t mean it wasn’t there, and when they finally did discover it was there all the time, they rightly applied it. There is no constitutional basis for denying women or blacks the vote. There is absolutely a constitutional basis for saying they do have that right. Your examples make my point.
I am NOT saying SCOTUS doesn’t have a legitimate role. I’m saying they often abuse their power.
There is no right to privacy in the Constitution, other than the fourth amendment right not to have your shit searched without due process. There just isn’t. Go ahead, show me. And it needn’t use the word “privacy.” I’m not trying to play semantical games, like you appear to be. Just show me the words (outside of the fourth amendment) that describe a right to privacy–again, it needn’t use that word. I’d accept something that describes that right using different words.
This would be the part where you’re playing games. Nonetheless, however you’d describe the fourth (a specific right for privacy works just fine), I hope you would agree that it guards against illegal searches and seizures. So, if SCOTUS reads it, and through their Spider sense determine that it actually describes the right to grate Gorgonzola, you can feel free to categorize this right any way you’d like. We can argue over whether or not “dairy product freedoms” describes it best. But it still won’t have anything to do with the words written.
Um, yeah. And? :dubious:
There’s a difference between interpretation, subject to defined judicial processes, founded upon the actual text of the Constitution–and making shit up. And the Constitution is quite clear–the legislature makes law. Not the judiciary. Sorry.
Seriously, I don’t know why it’s such an incredible concept to some people that the U.S. Constitution didn’t cover everything, and that there are some matters that are none of the highest court’s concern because the only place the Constitution dealt with the matter at hand was in the tenth amendment. Sometimes it is absolutely appropriate for SCOTUS to say (and they sometimes do), “this is not our concern, you guys deal with it.”