Then it should be easy for you to provide the words that support the specific elements of their decision I’ve been referencing. I’ll wait for your response.
I don’t need to define “personhood.” That is the province of the pro-choicers. With regard to Roe v. Wade I am content in the knowledge that there was nothing in the Constitution that stopped the states from prohibiting abortions, at least nothing I can find after numerous readings.
Try a different argument. You toss “precedent and common law” on the table as a rebuttal to someone who takes exception to Roe v. Wade, a decision that overturned precedent and established state law. Do you really not see the disconnect?
Dude, I’m not trying to be a smartass. I am absolutely sincere in my responses, believe me. And I will assert yet again that to look outside of the Constitutition for the basis of constitutional law is, well, silly. You really don’t see a non sequitur there?
Shrug I see a restriction against unreasonable searches and seizures. Seizing someone for having a beneficial medical proceedure seems pretty unreasonable to me.
What precident did Roe v. Wade overturn?
No.
No. Let me repeat again. The Constitution does not define its terms therefor it is necessary to look elsewhere to define terms.
No, I don’t see the difference, at least not insofar as reasonable suspicion nor probable cause as justification for seach are not found in the Constitution either. Evidently, you’re not willing to work with me on analogy. That’s OK. Not being a constitutional scholar, I think I’m probably unwilling to put the time and effort into this that you require.
I would bring up the penumbra of rights, but I believe you’d have none of it. Is that correct? Alternatively, I’d ask what one relies upon to define cruel and unusual punishment (which shall not be inflicted) or freedom of speech (which Congress shall make no law abriding). Arguments can be made that certain punishments are indeed cruel and unusual, and certainly you have to grant that Congress makes laws abridging freedom of speech.
But those examples aren’t quite right, as they do not rely on common law findings for their foundations. Oh well, as I said, I’m not all that knowledgable in law, am not willing to put in the legwork, and therefore will bow out.
There are other cases that rely on the right to privacy, GRISWOLD v. CONNECTICUT for instance, and here’s FindLaw’s search for cases citing GRISWOLD v. CONNECTICUT, 381 U.S. 479.
Personally I find Goldberg’s concurring opinion to be the most compelling, I quote,
The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected. In presenting the proposed Amendment, Madison said:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].” I Annals of Congress 439 (Gales and Seaton ed. 1834).
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
“In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.” II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth Amendment:
“This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others.”
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.
While this Court has had little occasion to interpret the Ninth Amendment, “*t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, “real effect should be given to all the words it uses.” Myers v. United States, 272 U.S. 52, 151 . The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow “broaden[s] the powers of this Court.” With all due respect, I believe that it misses the import of what I am saying. I do not take the position of my Brother BLACK in his dissent in Adamson v. California, that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court’s opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e. g., Bolling v. Sharpe, Aptheker v. Secretary of State, Kent v. Dulles, Cantwell v. Connecticut, NAACP v. Alabama, Gideon v. Wainwright, New York Times Co. v. Sullivan. The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.
Of course one may chose to take Robert Bork’s position that the ninth amendment is just an inkblot on the constitution.
You may wish to throw away your ninth amendment rights, but I’m keeping mine!
The reason that the outcome turns on the personhood of the developing fetus is because a balancing of rights is at issue: that is to say, since the intervention of the state. (by definition) only becomes important when it disturbs the status quo (in this case, the woman gets the abortion absent state intervention)
Hence to undergird the states assertion of an interest sufficient to override the interest of the woman in controlling her body, there needs to be an entity with rights on the other side (in this case the fetus’ right to life)
The intellectual knot that Blackmun had to tie himself into was the result of a hidden subtext of the anti-abortion argument.
The religious view (which is perfectly intellectually consistent) makes the two day old fetus as much a divinely empowered spark deserving of protection because the status quo for the fetus (if undisturbed by the intervention of the mother will be birth).
The religiious frame, however, is not vindicable in civil courts; The fetus is then subject to an analysis that says, "hey, at three months, whatever happens to the mother happens to the fetus, so it has no “standing” (as it were) to object if she decides to terminate it without terminating herself.
Because one view is absolute, and the other one is relative, the reasons advanced by the secular frame can never adequately rebut the arguments of the religious frame, but that’s tough.
What the anti-choice folks want is to enlist the state in vindicating their absolutist approach. To them, the prohibition on abortion is merely the logical extension of the prohibition of murder. (BTW, that’s another way that the accrual of personhood to the fetus could backdoor blanket prohibition of abortion)
So Blackmun has to construct a bulwark using secular reasoning that will push back against the prior jurisprudence with its roots in canon law, that assumed the individuality of the “quickened” fetus(remembering that this was actually a metaphysical transaction supposedly signalling the entry of the soul,.)
It is, of course, undeniable, that abortion under this reasoning is the murder of the fetus. I mean, it is causing the death of the fetus. Which I guess is why the issue gets folks riled up. I tremble to say it, but if you are buying into the religious frame, you may have to get your ass out there with operation rescue or be a miserable punk.
The problem is that the ninth amendment, as it was interpreted here, could support virtually any right–the right to take narcotics, the right to commit libel, whatever you can think of. Why don’t the states, as duly elected representatives of the people, have the right to prohibit abortions? Shouldn’t the ninth amendment protect that as well? It is a pretty shapeless argument. Think about it: It finds a right to privacy where none is specifically enumerated by virtue of the fact that it is not enumerated. That should come in handy regardless of what rights one likes best. I tend to agree with Bork and that famous legal scholar minty green on the power of the ninth amendment.
Work with you? I provided you the specific words in the Constitution that contain “probable cause.” They’re not found in the Constitution? I gave you the words!
I’m confused. Are you guys arguing over whether the words “probable cause” etc which certainly appear in the document, are also defined there?
because they are not defined there and they were included advisedly with reference to the legal dictionaries then current and (of whichc Merriam Webster’s cUnabridged is today)
but probable cause in particular did not pop up in 1787 in a vacuum There was extensive comon law jurisprudence that is subsumed in the phrase upon its inclusion in the
bill of rights, inc luding the prior British Bill of Rights in 1688, and stuff.
I was reacting to Digital Stimulus’s comments that “probable cause” isn’t even found in the Constitution.
I agree that the words require interpretation and an understanding of what the terms mean or can mean. I just offer it as a stark contrast to the “right to privacy.” No one would argue that probable cause isn’t a Constitutional requirement, I assume. The very words are in the document.
This is patently false. For example, nowhere in the Constitution prior to the 14th amendment is citizen defined. The fact that it was necessary to add that portion of the 14th amendment proves my case. Since however, you insist that Constitutional terms are defined in the Constitution would you please provide the definition for “person”.
no certainly but “the right to be secure in one’s person and possessions” kind of implicates privacy, doesn[t 9t. I mean when we say that the man can’t rummage through your stuff if you don’t think its a privacy interest that is being protected, put yourself in James Yees place, and they just found some questionable stuff on your computer because they cam hrough looking at everyohe’s compputer?
Whoops. Somehow, I missed probably cause. My apologies; it was late and I was tired.
Nonetheless, there are many shades of grey prior to probable cause (such as reasonable suspicion) that are not found in the Constitution. Rather than ignore the forest for a particular (probable) tree, I’d ask for you to address the broader point – that even when things are explicitly stated in the Constitution (e.g., Congress shall make no law abridging freedom of speech), there are exceptions, qualifications, and further refinements of words, concepts, and definitions contained therein.
If you grant that – and I’m not sure how you cannot – then you’re argument becomes “it’s not appropriate to do so in the case of abortion”. Furthermore, for clarity, you seem to be putting forth two arguments: (1) there is no right to privacy in the Constitution and (2) the three month period of pregnancy has no justification. I was not trying to argue point (1); I have not the legal knowledge to do so adequately, although it seems clear to me that the penumbra of rights that includes the right to privacy is spot-on (my opinion). I was arguing point (2); if you’ll look at my original post, you’ll find this:
Again, if you accept a right to privacy, then we need to establish the situtations in which it can be applied to and set out reasons for how. As treis has pointed out, there are indeed reasons and justifications for setting the time at three months (that happen to come from (British and other European) common law).
It seems bizarre to me that you cannot accept that not every right is enumerated in the Constitution (impossible in principle!), hence the 9th and 10th amendments. And even those that are do not enumerate each and every case in which to apply them (again, impossible in principle!). Unfortunately, philosophical kinds (such as particular broad rights, in this case) are rife with exceptions and qualifications. Which is why US jurisprudence relies on both Justinian and common law practice, attempting to get the best of both.
And evidently, it’s early and I’m not awake yet, for I forgot to put this in:
Yes, probable cause is in the Constitution (again, I’m not sure how I missed that). What defines probable cause? The contents of a warrant? I think not; there must be some outside standards applied, for otherwise a judge could literally put anything in a warrant (so long as it is “particularly describing the place to be searched, and the persons or things to be seized”; theoretically, as silly as it is, a laundry list of items could be established that appear in every warrant, e.g., drugs, weapons, pornography, and a blank for any items not already in the list). But the Constitution makes no mention of particulars, leaving it up to precedent and common law as to what qualifies.
Analogically speaking, if one accepts that there is a “right to privacy” in some degree (which again, I’m not qualified to argue, but accept as both established and proper), the particulars have to be established – the three month “quickening” of the fetus is just that, though not explicitly mentioned in the Constitution, but rather based on common law.
May I offer to you two legal fictions that may help shape Ninth Amendment jurisprudence: the “reasonable man” and the much-maligned “emanations and penumbras” concept?
Quite simply, the Ninth Amendment says, “There are other rights than those spelled out. The fact that some are spelled out shall not act to disparage those others.”
As you justly point out, we need some basis on which to identify what those others are, and to establish they do not include whatever some half-baked clown decides is his Constitutional right: to blow up abortion clinics, for example; or to, as one member of a corporate sovereignty, decide not to pay income tax because Ohio wasn’t properly admitted to the union. To insist that Almighty God, as interpreted by him, supersedes the Constitution. You’ve seen some of the out-to-lunch theorists, I’m sure.
Now, the courts might take the legal concept of the “reasonable man” to adjudge whether something is a Ninth Amendment right. For example, no reasonable man believes that marriages as a general concept can be barred. Specific circumstances, sure. You may not marry your 10-year-old sister; you may not marry every member of your polygamous church in a group wedding. But that consenting adults of opposite sexes not presently part of a marriage and not within the bounds of consanguinity may marry … you’d be hard put to find someone to argue against that. Likewise with the right to travel: reasonable restrictions may be placed on the use of common carriers. A person on bail or probation must remain within the bounds he agrees to in posting bail or accepting the terms of probation. But to say AB may not be permitted to travel from X to Y, there being no other bar to it, is beyond what a reasonable man might find justifiable. So, Ninth Amendment rights may be identified by testing what a ‘reasonable man’ might find to be inherent rights.
Second, although no conservative scholar believes that the guaranteed rights have their own “elastic clauses” (one small exception being the First Amendment right to assembly incorporates a right of free association not explicitly spelled out but evident from the implications of the text), the inferences from them, what Justice Douglas infamously referred to as “emanations and penumbras,” may well be taken as criteria for identifying unenumerated rights. The freedom of speech, for example, entails a right to be heard by a willing listener. I believe that it is arguable that the right to security in person, house, papers, and effects extends beyond “unreasonable searches and seizures” to mean that government agents may not intrude at their own discretion without warrant or probable cause and without consent even if their purpose is not to conduct a proscribed search or seizure. And there in a nutshell is the much-debated right to privacy. My principle here is a Ninth Amendment right may be identified by its implication as a reasonable extension of an enumerated right, an “emanation or penumbra” from it.
I do not argue that this is the actual jurisprudence connected with the Ninth; any sensible person can quickly see otherwise. I argue that it is a reasonable means to distinguish the actual unenumerated rights from absurdist claims of “rights” that few Americans would agree exist. I suggest that, coupled with the “actual cases and controversies” standard for determining when such claims must be heard and adjudicated, it furnishes a plausible theoretical means for identifying true Ninth Amendment rights.
I am, of course, aware of the Borkist claim that the Ninth only serves to permit Congress by statute and States by constitution and statute to guarantee rights not explicitly spelled out in the U.S. Constitution. I believe that Madison would find that exactly the sort of prerogative-statist B.S. that he wrote the Ninth explicitly to avoid.
