No, they don’t. They subscribed, in whole or part, to the the theory that the Constitution has “emanations” and “penumbras” in which additional rights can be found. They don’t claim that the actual text supports their decision.
The Constitution requires that, for the first trimester, the abortion decision must be left to the medical judgement of the pregnant woman’s attending physician. That specific requirement is compelled by the Constitution.
What words actually compel that conclusion?
That’s it. That’s the Due Process Clause, the one that compels the conclusion that the Constitution requires that for the first trimester, the abortion decision must be left to the medical judgement of the pregnant woman’s attending physician.
THAT is what I mean by acting “ex text” as you say.
I think the point was that abortion, like the air force, is not mentioned anywhere in the constitution yet its absurd to think of the air force being unconstitutional.
It specifically mentions land and naval forces i.e. armies and a navy but fails to mention any airforce. If ** Bricker ** meant the necessary and proper clause then I point to the language specifying that the necessary and proper laws are those needed in dispention of powers vested by the constitution. If the test is that unless the constitution mentions it a right or privledge does not exist then Congress overstepped its bounds by creating an airforce.
Sorry, but I think this proves the constructionist point much better. We can point to a place in the text, article and section, and find authority for the Congress to raise an army, And it’s not much of a stretch to get to an air force from there, especially considering the Air Force’s history.
Bingo, we have a perfectly constitutional Air Force. And we don’t even need to justify it with emanations and penumbras either.
Actually I don’t think you quite understand the implication of a little stretch. Of course in this case the Air Force is an example used to show the absurdity of complete textualism. However where do draw upon the constitutional justification for the CIA, FBI, regulation of the airwaves or to the hundreds of other things the Federal Government does without strict textual support. A good number of these things are read from the necessary and proper clause. Similairly it does not take convulted reasoning to read various rights held by the people in the 4th, 9th, 10th or 14th amendment.
The fact of the matter is that the Federal Government has grown beyond what any of the founders intended it to. There was never any intention of reducing the states role as much as occured. Nor was there any intention of the Federal Government ever sticking its nose in most of the places it has. At some point you have to stop literally reading the constitution and interpeting the underlying rights and powers intended for the people and government, respectively.
At some point you have to stop literally reading the constitution and start interpeting the underlying rights and powers intended for the people and government, respectively.
It’s the “provide for the common Defence …” sentence in Art I, Sec 8, para 1, combined with the necessary and proper clause. Art I Sec 8 says that Congress has the power to provide for our defense; and it says that Congress has the power to pass laws to effectuate defense - thus, an air force is permissible. If the “common defense” clause did not exist, then you might have a point, but in ADDITION to the specific mention of an army and a navy, the Constitution gives Congress the ability to provide for defense in whatever other way they see fit.
Granted but why does it fall to the states under the 10th amendment and not the people or why don’t medical decisions fall under the rights retained by the people in the 9th amendment.
Most medical procedures are pretty closely regulated, and this regulation is pretty routinely done by the several states.
My uncle, as an example, serves on the Pennsylvania Board of Hospital Pharmacists.
Why should abortion be treated differently? After all, pro-choicers are constantly telling us that it is really a matter best left to a woman and her doctor. Modern medicine would include various state regulatory entities into this relationship for nearly every other medical procedure.
The Court did find that the State does have the power to regulate abortion to ensure the public health. That wasn’t the issue at hand. The issue was whether the State could prevent citizens from undergoing a medical proceedure benefitial to the health and well being of the citizen.
My problem with this is the assumption is that the only rights a person has are those literally spelled out in the Constitution. Setting aside the hotbutton topic of abortion for a second, I see nowhere in the Constitution a right to travel or move, for example. If California passed a statute that said that someone had to be issued official permission by the State before one could visit San Francisco, and then it claimed that the 10th Amendment allows states to make such rules, would you, Bricker, say that there would be no basis for the Supreme Court to strike down such a law because the words “right to travel” cannot be found in any of the Amendments?
I’ll let Brickeranswer for himself, but I have no problem deriving a right to travel from several Constitutional sources, including the First Amendment right of assembly, the Fourth Amendment right to be free from unreasonable government personal seizures, the Fifth Amendment prohibition on deprivations of personal liberty, or even the Ninth Amendment. (The basic right to travel can be traced far back in the common law, so I find it much easier to find a Ninth Amendment basis than I would for say, a right of privacy.) I’m also aware of a precedent that would derive a right to travel from the 14th Amendment, but I don’t find the argument in that case pursuasive.
But even if the 9th and 14th amendments are ignored, I’m perfectly happy saying that a government prohibition on travel to San Francisco (presumably enforced by arrest) would infringe on the rights of assembly and freedom from unreasonable seizures or deprivations of personal liberty.
From this layman’s understanding it would seem that the first amendment objection does not hold water becuase in many municipalities you need a permit to hold a demonstration. As long as the municipalities don’t discriminate (or fail to give them out I suppose) in giving out the permits there isn’t a first amendment issue, correct?
I don’t understand how the fourth amendment applies to this scenario becuase no one is being searched or siezed. Can you expand on this a little bit?
As far as the fifth amendment in what way does that due process clause differ substantially from the 14th amendments due process law? From my reading the part in question is identical in both amendments:
To me atleast by way of reading the third, fourth and fifth amendment there is a clear message being sent that the government can not abridge the liberty of a citizen without a good reason to do so. The fourth is especially significant to me in this way. It puts severe limits on the government’s ability to search my person or my house without my consent. I personally feel that there certainly is a protection against capricious government action. I don’t necessarily think the right to privacy is the best way to describe it but its accurate enough.
But we are getting ahead of ourselves here. Someone still needs to proffer an argument why the States may prevent a citizen from undergoing a medical procedure that improves the well being of that citizen and is safe.
Because the law doesn’t solely exist for the safety and well being of the people. It also exists to codify a broad sort of public morality.
Now, you may quibble with certain aspects of the law used in this way, but I think it’s pretty well established that this is, in general, entirely legitimate.
Without being a smart alec on this, and not intending necessarily to disagree, I’d like to see the argument underlying this assertion. It appears to give a pretty broad brush to government interference in individual choice on life decisions.
