Furthermore, “the pursuit of happiness” is clearly not a “right”…it’s an attempt to put one’s right to liberty into plain English. And it really isn’t the point. It is well0established that the right to reproduce is included in “liberty.” Regardless of what some right wingers would have you believe, the Constitution is a living, breathing document (a whole other debate) and I could see the Courts removing this right from it’s interpretation if the survival of mankind depended on it. Practically speaking, it would be a huge decision that people would not take lightly, but it is theoretically possible.
I’m truly not interested in writing you a Memorandum of Law–and for that I apologize. I have real memoranda to write. Suffice it to say (or perhaps not), I am a lawyer who frequently works in the Constitutional arena–i.e. discrimination, civil rights, etc. Whether implied or express–and in a completely practical sense–the State values and protects the right to reproduce. It would take an incredibly paramount state interest to override that protection.
As mentioned above, if the survival of mankind (i.e. overcrowding, resource scarcity, etc.) depended on it, then this right might be overridden.
The right of two healthy, married adults to reproduce is “implicit in the concept of ordered liberty” and “deeply rooted in the history and traditions of this nation” and are fundamental liberties under the 14th amendment. A “one child policy” would violate substantive due process under the 14th. Even Scalia and Thomas would get on board with that.
I am having trouble believing that a lawyer “who frequently works in the Constitutional area” would describe the rights set forth under the First Amendment as being the “right to freedom and liberty.” The constitutional lawyers I know tend to speak much more precisely than that.
And, really, I don’t expect a “memorandum of law.” One or two relevant cites would be sufficient. A constitutional lawyer should have a few key cases at hand, no?
I think we have a right to reproduce, but not a right to the baby’s survival. Reproduction happens in your own body, and the right to your own body is absolute. However, once something is out of your body, competing rights must be considered
It’s a message board. Relax. It was, again, an attempt to put the rights and protections of the Constitution into plain English. I apologize. I didn’t realize that you know lawyers. Clearly, I am an impostor and you are the expert.
I’m not going to go dig up (even if it is merely a waste of a few minutes) cases to prove the obvious. The first and fifth amendments (as incorporated to the state by the fourteenth amendment) both play a role in protecting our rights and freedoms. Off the top of my head, the argument is that the fourteenth amendment protects our right to privacy (including the governments meddling in private matters) and one’s right to liberty in general. These rights are understood to include protections for one’s right to reproduction. If I were to continue, the first amendment would be used to further show the intent of the framers in keeping the government out of such matters by the protections therein created-- freedom of religion, speech, press, petition, association–and it would further be implicated by additional arguments that reproduction is central to certain universal religions.
If I were to go on, there would a handful of equal protections arguments to be made on behalf of women–and potentially some questions of discrimination depending on how the law was enacted and enforced.
Not all of the arguments are winners, but they rarely ever are. The bottom line is that the Constitution protects our liberty. Liberty is one’s right to be free from undue government infringement on pursuit of happiness. This does not guarantee happiness, nor even infringement–but instead, merely the right to pursue as all others are. As of right now, the right of reproduction under the 14th amendment is a fundamental right. This means that in order for this right to be infringed upon, there must be a paramount State interest that overrides it and it must override in a very narrowly tailored method and be enforced in a non-discriminatory way. As mentioned several times above, the survival of mankind would be paramount–but it would have to be pretty dire.
I’m sorry if this does not meet with your professional approval of me and my practice. I’ll go turn in my license.
It is also worth noting that I said I work in the “Constitutional arena”…not area–not that it is terribly important.
I don’t just know lawyers, I am a lawyer. I’m not the only lawyer here and that shouldn’t be a surprise to you. Claims about legal doctrines tend to get a fairly rigorous workout here. You’ve been here a year; you should know that you don’t have to translate the First Amendment into the “right of freedom and liberty.” And the rights set forth under the First Amendment are already in plain English: A prohibition on establishment of religion, the right to free exercise of religion, the right to freedom of speech and the press, the right to assemble, and the right to petition.
You made a very specific claim that the Supreme Court has interpreted the First Amendment to establish a “right of freedom and liberty.” I would like to see a cite on that.
I’m not a constitutional lawyer and even I can cite Griswold v. Connecticut from memory as establishing a right to marital privacy and thus a right to contraception that was extended to unmarried couples in Eisenstadt v. Baird and to abortion in Roe v. Wade. See, I didn’t have to write a memorandum of law to list those key cases.
So what are your key cases that lead from the First Amendment to the “right of freedom and liberty”? I’m asking you, as a constitutional lawyer, to briefly educate me in an area that’s not my area of expertise.
First. I deem the Chinese one child policy to be incredibly cynical. Given the traditional desire of most Chinese (peasant China, not urban China) to have male heirs, limiting couples to one child means they will either abort female fetuses, kill newborn girls, or hide girls. A horrible situation, IMO. There are now tens of millions of missing girls. Ultimately the limiting factor on population growth is the number of females. Limit them, and population growth is slowed. Males need not be part of the equation.
http://factsanddetails.com/china.php?itemid=1029&catid=4&subcatid=15
Second. If the USA ever decides that having children is not necessarily a good thing, the federal government can drop the personal tax exemption, end the child care credit, etc. Those measures are not a tax on children, but they do end tax incentives for having children.
Third. If the situation ever becomes a matter of survival, people will do what they have to, including limiting child births. Constitution be damned. Until such a time, only voluntary population control efforts will be politically acceptable. Again, the Constitution would only provide talking points not govern in the matter.
Congratulations on naming a case. I never said I didn’t know Constitutional cases…any lawyer does. You learn them in any number of intro law classes. I said I was not going to go dig up the specific case law to your question. And while all law has its case law, and it is important in the courtroom, this is ultimately about doctrine and a body of SCOTUS philosophy.
Furthermore, and quite honestly, I was in the middle of working when I made my initial post (although I stand by its content), so it may have lacked the dignity and citation so required by internet message boards. You can accept what I wrote, or not. Heck, use it for a starting point for all I care. No skin off my back.
I was hoping to avoid being goaded into a long drawn out pissing match. I failed at that, but I am going to extricate myself from it because I have a late meeting.
And is it not the custom to identify constitutional doctrine by citing to Supreme Court decisions?
I didn’t ask you for an explanation. I asked you for a cite. Take all the time you need. There’s no deadline.
Well, meetings eventually end. And to the extent there has been a “long drawn out pissing match,” I don’t accept responsibility for that. I asked for a cite to back up your claim that the First Amendment sets forth a “right to freedom and liberty.” There’s nothing extraordinary about that. And you needn’t even consider it a pissing match. I’m quite willing to accept that this constitutes a lacuna in my knowledge of constitutional law. So, as I said before, feel free to take your time.
True, but only an alarmist or someone who doesn’t understand growth would use a linear chart to show growth. (I’m referring to whomever posted it to wikipedia, not you.)
Here’s a far more informative graph, but it does assume you can read the log scale on the left:
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This shows when the growth rates were higher and when they were lower. I think it bolsters your claim about the growth rate being higher during the industrial age. From the linear chart, we can’t possibly tell that. (When growth is exponential, all charts look just about the same. That’s why whenever anyone wants to rail about government spending, they use a linear chart, which makes it look like all the nastiness was in the most recent administration.)
I’m confident that it would take a horrific situation in the US to spur laws limiting procreation, and that even if they were passed, they’d be found unconstitutional based on the tenets in Roe v Wade. So, we’d have to pass a constitutional amendment. Then there’d be a lot of civil unrest, and a lot of fringe elements would capitalize on it to try to overthrow the goverment, or at least, obstruct it. I see militias lining up for that fight.
I sure hope it doen’t become necessary. It was for China. At some point they’ll have to back off, because a 1-child-per-couple policy, if actually policed thoroughly, leads to substantial population reduction. Economies don’t do so well during population reduction.
As mentioned above, there are better solutions. I remember Carl Sagan saying that we don’t have a population problem as much as a poverty problem: solve the latter, and the former will go away.
I saw a recent TED talk where someone used container bins to represent chunks of the population. I wish I could remember who, but his point was that with progress, not only will the population growth slow, but the current big gap between the haves and the have-nots will get filled.
If only we have enough resources and can avoid disaterous climate ramifications before that happens!
North Carolina had a eugenics program, too, and recently decided to compensate the living victims. I don’t know whether the award amount has been decided yet.
JDubs, color me curious as well. On top of Ascenray’s questions, I’m also confused about the part where the courts have WELL established the RIGHT to reproduce? Then have the power to remove that right from its interpretation? Not trying to attack. It’s just that I’m not entirely familiar with those powers and I am NOT a lawyer.
Those in the West who are aware of China’s One-Child Policy tend to assume that it was implemented to prevent overpopulation problems. It was not. The Chinese government implemented the One-Child Policy in 1980, but it had tried to limit population by voluntary measures for a decade before that, with great success. Between 1970 and 1980 China’s fertility rate dropped from 5.5 to 2.7, and even without the use of force it presumably would have continued dropping. Even ff overpopulation ever was a looming problem in China, it could have been solved without force.
Why does China have the One-Child Policy? It’s well known that the communist government is greatly concerned with making itself look good in comparison to other countries. In Mao’s time, they had an obsession with matching the industrial production of the US and Europe, which lead to disastrous economic policy. In later decades, the international community started focusing more on measures of well-being such as GDP per capita. The Chinese government easily understood what many amateur statisticians don’t: with fewer people, ‘per capita’ statistics look better. Further, government control of reproduction fits in well with the communist philosophy of government control of everything. Hence the One-Child Policy.
Of course the Chinese government has had assistance. From the article I linked to above:
And then there were the forced abortions and sterilizations. On this score, the Chinese government had help from the West. In 1979, as China prepared to roll out One-Child, the government signed an agreement with the United Nations Population Fund, which pledged $50 million to help control births—a euphemism that in practice meant groups of government workers rounding up pregnant women and forcing them to have abortions. The U.N.’s presence opened the door for other Western organizations, including the Ford Foundation and the International Planned Parenthood Federation, which poured resources into China in an effort to kill babies. These groups were not unaware of what was happening. The IPPF’s Benjamin Viel wrote admiringly, “Persuasion and motivation [are] very effective in a society in which social sanctions can be applied against those who fail to cooperate in the construction of the socialist state.”
Others were less enamored by what they saw. In January 1980, an official from the IPPF sent a memo of caution to the group’s director. “[V]ery strong measures [are] being taken to reduce population growth—including abortion up to 8 months,” the memo said, before continuing: “I think that in the not-too-distant future this will blow up into a major Press story, as it contains all the ingredients for sensationalism—Communism, forced family planning, murder of viable fetuses, parallels with India, etc. When it does blow up, it is going to be very difficult to defend.”
Planned Parenthood’s leadership ignored the warning.
Can we agree that the Weekly Standard is perhaps not the most objective of sources on the issues of abortion and population control?
This is a bit more complicated than you might think. With regard to the specific issue of whether the state can forcibly prohibit a given individual from procreating, it never has.
In 1927, SCOTUS established that it was:constitutionally permissible for a state to establish mandatory sterilization programs for the mentally retarded*. In 1942, SCOTUS struck down a program that mandated sterilization for certain crimes, nothing that:
It is important to note that the problem with the latter program wasn’t that it was a denial of a constitutional right to sterilize felons. It was just that the selection of crimes for which castration was permissible under the law was more or less random. The law was struck down on equal protection grounds, rather than substantive due process grounds, so it didn’t matter whether procreation was a fundamental right. Hence, the quote above is arguably dicta (not binding, because it wasn’t material to the outcome of the case).
Forced sterilization programs were not killed off by the courts; far from it. Instead, they were killed off by legislatures, mostly after people stopped buying into eugenics and came to realize that mentally deficient or criminally inclined parents were not bound to have children with the same characteristics.
SCOTUS has deemed procreation a fundamental right in other contexts though. For example:
Again, dicta; Meyer did not involve a restriction on procreation, but a law that said schools could teach only English.
Probably the best argument that procreation is a fundamental right comes from Carey v. Population Services:
There, SCOTUS was talking about the right to terminate a pregnancy, not to carry one to term, but it’s difficult to construct an argument wherein the 14th Amendment protects the former but not the latter.
That is my position. I’m a firm believer in abortion rights. I also believe that the same argument that says that a women has a right to an abortion also says that she has the right to have a child if she chooses.
RNATB, Buck v. Bell is only good law in the jerk off rooms of our Con Law classes. Let Texas fire up a eugenics program today and see it overruled 9-0 or 8-1. We talked about it in another thread, but a forced eugenics program would NEVER come back today and stand…