Interpreting the Constitution is exactly the same as deciding right and wrong? Really?
And what’s “inaccurate” about my summary of Roe V Wade. Was the basis of the decison not that the right to privacy was retained by citizens under the 9th Amendment? Whether you agree with that interpretation of the Amendment that is what the decision said:
I guess I was incomplete in not mention Amendment 14, but I wan’t inaccurate.
Hey, don’t argue with me, argue with SCOTUS. They’re the ones who found it there.
I know it’s where you got your “penumbras and emanations” phrase. I also know that the decision found a right to privacy in several Amendments, including the 9th, that it reversed laws making it illegal to use contraceptives and that it was leaned on in Roe to support the right to privacy.
The devil, of course, is in your use of ellipses. Here’s the complete quotation:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
(Emphasis added.)
The District Court (e.g., the trial court) based their opinion on the 9th amendment. The Supreme Court based their decision on the 14th amendment. So yes, you were inaccurate.
You might try actually reading the cases before you spout off about what the court has and has not found.
Not so hot. I didn’t ask you for a mere recitation of the facts of the case. I asked for your thoughts on the case – your analysis of the reasoning employed by the court in reaching its decision.
You aren’t addressing the penumbral argument presented in Griswold, which is what I asked for.
As for the 4th standing alone, you haven’t explained how you get to a generalized right to privacy from language that protects one particular privacy right (freedom from unreasonable searches and seizures).
I am not stupid enough to get in a legal debate with a lawyer. I’m just going to be honest and admit that I don’t have the training or ammunition to mount a technical defense of either Griswald or Roe so I’m not going to set myself up to get bitchslapped. I’ll just defer to the courts who made those decisions and argue (probably to no avail) that those decsisions were made on what those courts perceived as Constitutional grounds and not personal morality.
And yet you are stupid enough to deliberately excise key text from a quotation in a vain attempt to defend a patently incorrect statement. What a nice illustration of your intellectual honesty.
And here I thought you hated the idea of letting others do your thinking for you.
I’ve been working all day today, Dewey. I just got home.
I’m not sure what you want to debate. Do you want me to defend Griswald and Roe. Do you want me to make a case for a right to privacy? Do you really want me to say what I think of Griswald (I assumed you were being facetious in your initial post about it).
Do you want me to prove that those decisions were not judicial determinations of “right and wrong?”
Well, that’s fine. I was just asking. I noted you had made several posts since my last in other threads, and was curious to know if you were dropping out of this one (as you did in this thread).
I want you to square your view of Griswold and Roe as constitutionally-correct jurisprudence with your statement in this thread (in post #29) that “I’ve always argued just the opposite, that judges should enforce the Constutution as it is written rather than finding loopholes or creating ridiculous constructions such as “ceremonial deism” out of whole cloth in order to impose a personal religious or moral influence on their decisions.”
I want you to explain why “emanations and penumbras” aren’t a ridiculous construction or loophole designed to allow judges to impose their own particular moral worldviews on the states.
And I REALLY want you to square your statement about the role of judges with your view, espoused in the linked thread above, that all children have a federal constitutional right to a quality education (in the sense that the states, in your view, cannot constitutionally adopt “stupid” curricula).
I think the Constitutution as written implies an obvious right to privacy in the 4th Amendment because there is no other reason to prohibit unreasonable searches and seizures.
I also think the right to privacy is on of those obvious rights that don’t have to be delineated in the Constitution like the right to drink milk or the right to play the banjo. Just because it’s not specified in the Bill of Rights doesn’t mean it’s not a right.
“Emanations and penumbras” are not a “construction,” They describe a methodology of interpretation. They are a legitimate attempt to interpret an overriding intent in the text collectively and the entirety of the Constutution shows an obvious intent to create what Brandeis called “the right to be left alone by the government.”
“Ceremonial Deism” is not an attempt to find intent at all but is a wholly rectally derived and imaginary loophole. It’s a device, and excuse NOT to follow the intent of the COTUS.
As to the right to education. If tax money is being used then that money has to provide each kid with an equally sound education. It can’t be used to educate only some but not others. As long as one kid in the state is getting a publicly. funded education then every kid has to get one
Now, if you can find a state where the curricula is so universally bad that not a single kid is getting the real facts then you may have a case that the 14th amendment would no longer apply, but since no such state exists then I think I’ll just stick with a real world argument that every kid in a state has the right to a sound education.
To this, I’ll simply reiterate my question posited several posts above: how do you get from a protection of a particular privacy right – namely, the right to be free from certain searches and seizures – to a generalized right to privacy? Your simply saying that is “obvious” is a dodge – a shortcut to avoid having to explain the reasoning that gets you from point A to point B. It most certainly* isn’t* obvious “as written.” It demands analysis.
What is this, if not deciding “right and wrong” rather than just neutrally applying the law as written? What is deciding that something is “obvious” and doesn’t need “delineation” if not the impositon of one’s own world-view on the jurisprudential process?
Which is, basically, a crock of shit. I can find anything in a “penumbra.” Literally. I can gin up a right to do just about anything using that kind of “reasoning.” It is, simply put, a baldfaced attempt to put a thin veneer of respectability on what is unquestionably judicial legislation.
Well, for starters, I think it does represent an attempt to find the intent of the authors of the text; it certainly qualifies based on the same descriptions you apply to penumbral analysis. Certainly the authors of the first amendment were comfortable with the kind of lip-service references to God that pass as ceremonial deism. It’s a bit silly to claim that particular label “is not an attempt to find intent.”
Secondly, as others have noted, “ceremonial deism” is not so much an analytical method as it is a shorthand label for certain classes of things that are not “establishments” of religion – namely, lip-service mentions of a deity devoid of meaningful religious content. Intepreting the first amendment involves deciding what is and isn’t an “establishment,” and while I realize you’d like the class of things comprising “establishment” to be broader, just because you want it to be so does not mean it must necessarily be so.
Again, you are moving the goalposts, just as you did in the other thread.
The issue was not school funding. It was the power of local school boards to choose their own curricula, and of parents to make educational choices of which you disapproved for their children.
And I’ll raise the same three objections to your analysis that I raised in the other thread, objections to which you never did respond. To wit:
And again, I’ll raise the same three objections to your analysis.
Dewey, I have to go to work again very shortly. I will respond to your post later this evening when I get home. It will require a longer response (and perhaps a little research) than I have time for at the moment.
It says the right of the people to be secure against unreasonable searchers and seizures shall not be violated. The key word being unreasonable. That means the government has the right to make reasonable searchers or seizures at any time it wishes. To use an example if you live in a glass house the government has a right to drive up on the street and look inside your house. I think the reason behind this amendment lies in the term ‘unreasonable’.
If the government comes to search my house it inconviences me becuase I have to take the time to allow them into my house to conduct their search. I lose the use of my house for the duration of the search. I also have to spend the time to clean up after their search not to mention the possible damage caused by the search. The same reasons cover seizure of property. I am harmed becusae I lose the use of that property for the duration of the seizure. I would argue that the reason the government cannot come into my house and search my computer is becuase I lose use of that computer not becuase they might find backdoor sluts 9 in the DVD player. I would argue that privacy is not the justification nor is it even part of the justification for the 4th amendment.
I love it when textualists do this… The text is all that matters… Except when it doesn’t include something we think should be in there… But of course, then tradition becomes oh so clear, doesn’t it?
Yes it does. But it doesn’t guarantee the right to vote. And as our textually obsessed friends keep telling us, if they wanted to put it in there, they would have put it in there. It is not for us nowadays to read into their intentions.
Bottom line is that you can’t stop someone voting based on race. You can stop everyone voting, if you are a strict textualist, of course.
a. A political order whose head of state is not a monarch and in modern times is usually a president.
Well, the first definition of republic there does not seem to requre voting.
Of course you are in reality right. We know what a republican form of government is. But these are the silly little games textualists, and in particular Scalia, play with dictionaries. I have no doubt voting is enshrined in the constitution, but not in the text. Same I have no doubt privacy is enshrined there too.
Re: cermonial deism–doesn’t the fact that some people fight tooth and nail to maintain these religious references, and the fact that other people are clearly bothered by them, pretty much demonstrate that they’re not “meaningless”? If they really were meaningless, then no one would care–there would be no rallies, no letters to the editor, no Great Debates threads, and no asshole judges spending a fortune on embroidery.
If things like “One nation under God”, “In God we trust”, and the Ten Commandments were really ceremonial and devoid of any actual religious meaning, then religious people would not get so worked up about attempts to remove them. This is my problem with “cermonial deism”–in practice, it is usually internally inconsistent.
Don’t try to equate the ‘clarity’ of the right to vote with the right to privacy. The constitution specifically gives the power to the people to elect their representitives.
There is not mention of the ‘right’ to privacy anywhere in the consititution.
I don’t say one is as clear as the other. I just say textualists can be more than a tad hypocritical when it comes to their willingness to look beyond the four corners of the text of the Constitution.