It’s a constitutional right to be free from give intrusion into certain personal matters, which includes family planning decisions.
There are those who say “there’s no constitutional right to contraception - it’s never even mentioned in the document!”
But that’s like saying “There’s no constitutional right to be Protestant! That religion isn’t ever mentioned in the text of the document!”
Obviously, the bill of rights refers to “religion”, which includes Protestantism. And, similarly, the privacy rights found within the constitution have been deemed to include contraception.
Just did a bit of research. So Connecticut made a silly law about contraception. It went to the Supreme court and they struck it down as unconstitutional. Dissenters didn’t say it was a good law, but they said there wasn’t anything in the constitution that over-rid the law. That basically sums up Bork. He isn’t willing to read things into the law that aren’t there in plain English. I agree with him. If the law is bad, change it by voting out the people who made bad laws. Not by the judges because then the bad law makers stay in power.
I think it is perfectly reasonable to not appoint to the Supreme Court for life a guy who tried to help the president subvert democracy. Any time Republicans complain about Bork it just reminds me that they have always been fascists and Trump is well within their mainstream.
No, you don’t have a constitutional right to chocolate.
But you do have a right to be free from arbitrary government intrusion into personal matters of individual choice.
And so, if a government outlawed chocolate, you might be able to challenge that law on the basis that it is arbitrary. But it wouldn’t be chocolate that was at issue - it would be the scope of government power.
From this quote, it sounds like you read the dissent.
Did you also read the majority opinion? It also invoked legal maxims and authority.
If we apply this standard, and add into it the condition that the law doesn’t apply to things not under consideration by the author, then do you agree that the 4th amendment right against searches and seizures has absolutely no application to your car? Cars aren’t mentioned, and didn’t even exist when the amendment was authored.
My question still stands: there’s no reference to cars in the text of the 4th amendment. Is it silent as to whether they are governed by search and seizure law?
What about whether a radio or television broadcast is entered to freedom of speech or press protections? Neither medium is mentioned.
How strict is your requirement that the rights encapsulated must be found in “plain English”. Are we entitled to any extrapolation at all?
Right. Bork wasn’t rejected because of abortion, but because he was a proponent of an extremist minority judicial philosophy.
Now, he was a persuasive guy, and his position isn’t as minority in 2022 as it was back then. And what i really want to say belongs in the pit, but i think i can say that certain factions of society recognize that Bork’s legal philosophy can benefit them.
There are only 2 approaches you can take: either a law is strictly limited to the “plain English” of the text, or you can accept that the law applies to situations not expressly mentioned, but which are analogous to the law’s words and meaning.
I believe that the latter approach is necessary to give the law utility to the people who apply it.
Of course, even if you take this view, you can still argue the extent to which any particular situation is in fact analogous, and you might reject some applications.
But, that is qualitatively different than saying that the law is strictly limited to what the words on the page say. Otherwise, you end up with absurdities like saying that the government is not at all restricted in searching your car or, as another example, can arbitrarily confiscate your cell phone to search for inappropriate sentiments. (What? You want to be secure against government seizure of your phone unless a warrant is issued? Better pass a constitutional amendment!)
I get how the bit about the car or the phone would be a problem for words-on-the-page types if the Amendment limited itself to discussing the right of the people to be secure against unreasonable searches and seizures of their persons and houses and papers.
But do you think it’s a different question, or still just the same one, if a words-on-the-page type were to talk about a right of people to be secure in their persons, houses, papers, and effects? Would the absence or presence of those last two words there change the discussion for you?
But as Bork’s article notes, where is there a neutral principle that is derived from the constitution that is generally applicable? Why, for example, can businessmen not fix prices in private, or a family use cocaine in private?
Bork stated that he had no problem at all with contraception but simply declaring that a married couple has a right to privacy regarding contraception: 1) comes from no principle articulated in the Constitution, and 2) cannot be generally and neutrally applied. And he’s right.
This is different. The 4th Amendment mentions “effects.” A car is an “effect” even if it wasn’t one that the founders knew of.
As I understand it, you are saying that the scope of what I am saying is actually included in the amendment by virtue of the words “and effects”. I think that’s a very correct claim, but it is correct because you’ve applied the meaning of “effects” to circumstances not under discussion when the word was originally written.
Which is what I believe is proper and represents a meaningful application of constitutional law.
Now, if you were to say that “effects” only mean those things an 18th century American would have listed, or argued that “effects” is an altogether different word than “phone”, I’d say that you are being impractical and applying a worthless legal standard that doesn’t serve the people to whom it pertains.
This was a not uncommon view in opposition to the Civil Rights Act. Barry Goldwater, a major party presidential candidate was against it. Nonetheless it would have had nothing to do with Bork as Justice. He didn’t say it was unconstitutional.
And he was right. The use of the equal protection clause for indigency would again open a Pandora’s Box and why this decision has near zero precedential value because it is so poor—even though it reached a good result.
And again, he’s right, but gets demagogued. Shelley v. Kramer again had terrible reasoning and has not been followed. As Bork said, if a guest at a dinner party makes a political statement that offends the owner and the owner calls the police to eject him, the logic of Shelley would say that the use of police was state action—everything would be state action. An absurd proposition.
So you do agree that the language of the constitution can and should be applied, by analogy, to situations that the writers did not contemplate! The originalists would be alarmed at your activism!
The constitution also mentions “due process”. And a right “to be secure”. And an additional reservation of rights to the people.
Now, you can quibble with how to apply these concepts, and how far they extend and when they should be applied, but it sure sounds like you approve of the methodology of using these precepts to address issues like contraception and family planning, even if you’d conclude differently than the majority opinions that have been issued.
It’s not an analogy. It is right there is the text: effect. Nobody believes that the text should refer only to 18th century items; that is a strawman argument.
As far as contraception, the analogy fails. Yes, you have a right to be secure in your houses, but how does that translate to a right to contraception? It is strained to say it does, even if as almost everyone believes, people should have easy access to contraception. But to use a generic right to privacy would seem to say that I have a right to beat my kids or use cocaine in private. It doesn’t follow from anything said in the text.
The problem, as I see it, is that the 14th amendment’s grant of power to Congress to pass civil rights legislation was denuded by racist courts in the second half of the 19th century, and rather than reject that racism later courts tied themselves into knots to uphold civil rights laws on other grounds (I.e. anti-segregation laws became an issue of interstate commerce, rather than simply enforcement of the equal protection clause)
I think it is pretty clear that the 14th Amendment only prohibits states from passing unequal laws and that Section 5 gives Congress the power to enforce that prohibition.
Private discrimination is not in the ambit of the 14th Amendment by its clear words.
ETA: And if it is, does that extend to the privacy of the home?