Where is the word “slavery” before the 13th Amendment? Yet when alluded to, everyone knew what it meant.
As long as they agree to abide by exactly the same rules as protestors at abortion clinics. No touching, ect.
I would take a stab in the dark and say it suggests a right you have for the authorities not to come into your house or car etc. and go through your stuff without cause. I too find myself wondering how the right to ‘privacy’ became an abortion issue. If you want to take a parent off hopeless life support is that a privacy issue too? (I have not read about the US abortion issue at all, as I find it depressing, so I am a complete newb ready to be schooled)
And the right wasn’t bothered at all when the protests were at the homes of election officials Protestors Demonstrate At Home Of Election Official & Her Son or school board members https://oaklandside.org/2022/02/03/protesters-caravan-to-denounce-ousd-school-closures/
Apologies if I am being dense, but what reason would you have to be free from such intrusions, if not because you had some right to/expectation of privacy?
I’m finding it hard to imagine the founders saw fit to include this as a basic right just to - say - constrain law enforcement for no clear reason.
The “home as castle” doctrine has a long history in English common law - which the founders were well aware of. If that doctrine does not primarily reflect a right to privacy, what does it reflect?
That’s a very good question, one that seems to lend itself to the reasoning that resulted in the Roe v Wade decision.
It would seem as though, if your home is your castle and is inviolable, your body should be even more so.
You are not being dense, possibly I am, but it would be a property right. People can’t come into my yard and start messing with my bike. It’s not about privacy. My bike isn’t private.
I also wonder this as well. If I’m walking along my private property, spot an plant, and ingest it, that may be illegal depending on the plant. Even though I’m ingesting a plant that I own into my own body, the government may have prohibitions against doing that. The government has lots of laws about what people are not allowed to do to their body. It doesn’t seem like the right to privacy overlaps with the right to abortion considering all the other laws that deal with restrictions about what people can do with their bodies.
The right to be secure “in their persons”?
That part is a head scratcher. :p. I’ll rejoin the thread when time permits.
Not really. There are times when possessing the plant is illegal. As would be producing, selling or transferring the plant. But once it is ingested, you are no longer breaking any laws. (Unless you then drive while under the influence.)
So, do you think govt could just outlaw sex outside of marriage, and then, only for the purposes of procreation? (And further, could it choose who you are to be mated with?)
Exactly how much control of you body do you want to give up?
There are lots of drugs which are illegal to ingest. It’s also illegal to misuse or abuse prescription medication. If I’m sitting I’m my couch taking handfuls of oxycontin, the government can prosecute me for misuse of them even though I was prescribed them legally.
Of course I don’t want that. I’m just pointing out that I think the privacy argument against abortion is pretty weak. We already don’t have that kind of privacy with regards to our body for lots of other things. To use it as a tactic against abortion is inconsistent considering all of the other ways we don’t have similar privacy about our body.
And when you show up at the ER from an overdose, you won’t be charged with having used them. Only if you still have unconsumed drugs in your possession
Okay, so your state passes a law stating that you may only have sexual intercourse with designated citizen #RT423 until she is pregnant, then you will be assigned a new mate.
What part of the constitution would you point to in order to get out of that?
I think we discussed that in another thread, my belief was a State could potentially get away with that under the current court. My “political opinion”, is that such a case would be a relatively nuanced constitutional call and not the black and white one I think some people imagined, which unfortunately means the Republican partisans on the court would have room to uphold such a law if they so desired.
I think there’s a chance even they would strike it down though, and I would generally say it should not be upheld.
It’s complicated in edge cases but the thrust of this is true–if someone had an expectation of privacy and was treating something as private then a warrant is required. A classic example is a homeless person in some sort of makeshift (illegal) shelter, you can (local laws permitting) disassemble that and make the homeless person leave, but if you just want to rummage through it to find evidence of a crime you might need a search warrant, situation depending. This would be in spite of the fact it isn’t a private residence and that the homeless person is not there legally.
So Roe is intrinsically linked to a decision from a few years earlier called Griswold. Griswold dealt with a Connecticut law that made birth control medication generally unavailable to most people. Griswold basically held that the right to privacy, which existed and has precedent prior to this, specifically applied to intimate relations. This essentially meant that contraception could not be banned by the government. The logic in Griswold also has a lot of applicability to Roe, and was an underpinning of Roe. It also was the underpinning of Lawrence v Texas which struck down criminalizing gay sex. Lawrence only came down in 2003 which was a big time gap, but a big part of that is virtually all States had stopped enforcing sodomy laws some decades prior. Lawrence was essentially “arranged” to create a test case to get them explicitly struck down.
The right to privacy most specifically derives from the Fourth Amendment, which across a number of other precedents, protects intrusions of your personal effects / etc even outside of areas that are strictly speaking, related to you property rights. A homeless person’s campsite for example enjoys some fourth amendment protections even though he has no property right to occupy the space (and there is a legal difference between the government’s power to remove his illegal camp and to rummage through it searching specifically for evidence.) Also on things like BLM land you can camp for 14 days at a time in one spot, but have no property right to the land, your private camp site would also be protected by the fourth amendment, a Federal official for example couldn’t start opening closed containers just to see if you “might have drugs.” Since it isn’t your private property, a Federal officer could walk through the camp, and if he saw something illegal in plain view you would probably be in trouble. There are also a few weird caveats about storage of fish and game taken in fishing/hunting and powers of a game warden, but that’s not super relevant to this discussion.
This is off base actually–going back to alcohol prohibition almost all of our “drug laws” use phrases like “illegal to manufacture, transport, possess.” There is very little “illegal to consume” or “illegal to have in your system”, unless with a conditional like “while driving.” This is not accidental, the reason the laws have always been focused on things like manufacture/transport/possession is because there are constitutional issues with prohibiting simply having something in your system.
Note that for “possession”, simply having an illegal plant growing on your property is a form of possession. What it would be difficult to do though is for a cop to “smell weed” on someone, thoroughly search them, ask them “have you smoked weed recently”, guy says “yes”–that’s not really prosecutable in general.
At that, I’m honestly not sure I see how gay marriage got into the ‘right-to-privacy’ argument; if two people say it’s nobody else’s business what they’re doing behind closed doors at home — okay, fine, I’m with you. But, unless I’m missing something, isn’t getting married a matter of public record? As far as I can tell, it’s not about keeping the relationship secret from the government; it’s about having the government officially acknowledge it, isn’t it?
If not privacy, than what other Constitutional right do you believe encompasses such things as abortion?
It didn’t, really. The majority did not really rely on a privacy argument in Obergefell, and mostly avoided calling attention to the existence of that right at all. What it did say was that Griswold protected – let’s be honest – the right of people to have sex with who they wanted to, and that gay marriage and the right to use contraception are fundamentally similar in that way. They held that the right to marry should be afforded protection for everyone, based on it not being right for that general principle of intimate association to be discriminately applied.
In his dissent, Roberts called your point out specifically:
The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante,
at 12. Although not entirely clear, this reference seems to
correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In
the first of those cases, the Court invalidated a criminal
law that banned the use of contraceptives. Id., at 485–
486. The Court stressed the invasive nature of the ban,
which threatened the intrusion of “the police to search the
sacred precincts of marital bedrooms.” Id., at 485. In the
Court’s view, such laws infringed the right to privacy in its
most basic sense: the “right to be let alone.” Eisenstadt v.
Baird, 405 U. S. 438, 453–454, n. 10 (1972) (internal quotation marks omitted); see Olmstead v. United States, 277
U. S. 438, 478 (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence
v. Texas, 539 U. S. 558 (2003), which struck down a Texas
statute criminalizing homosexual sodomy. Lawrence
relied on the position that criminal sodomy laws, like bans
on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touc[h] upon the
most private human conduct, sexual behavior . . . in the
most private of places, the home.” Id., at 562, 567.
Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert
here. Unlike criminal laws banning contraceptives and
sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no
punishment. Same-sex couples remain free to live together,
to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante,
at 28. At the same time, the laws in no way interfere with
the “right to be let alone.”
[...]
In sum, the privacy cases provide no support for the
majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of
their relationships, along with corresponding government
benefits. Our cases have consistently refused to allow
litigants to convert the shield provided by constitutional
liberties into a sword to demand positive entitlements
from the State. See DeShaney v. Winnebago County Dept.
of Social Servs., 489 U. S. 189, 196 (1989); San Antonio
Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37
(1973); post, at 9–13 (THOMAS, J., dissenting). Thus,
although the right to privacy recognized by our precedents
certainly plays a role in protecting the intimate conduct of
same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at
issue here.
It is a virtual certainty that Obergefell will be challenged (and overturned) by this court. Alito’s opinion basically promises it.
Gay marriage was not decided on privacy grounds in Obergefell, it was decided on primary first amendment grounds. The reasoning went like this:
- The right to marry represents a fundamental right for a number of reasons (they go into four specific ones.)
- The Fourteenth Amendment, through various precedents, is held to say that when it comes to the exercise of a fundamental right, a State cannot protect such a right for one party to the exclusion of another.
- It specifically noted that gay marriage bans violate both the liberty and equality clauses of the due process clause of the Fourteenth Amendment.
Obergefell, in a world where Trump was not elected and the court eventually became Democrat majority, likely would have served as a precedent for a number of important cases because there is some important law there. It is this primary reason I believe Alito will seek to nuke it as well, I don’t think the GOP really wants the gay marriage “fight” all that much, but it simply creates an unacceptable precedent.
Note that Anthony Kennedy specifically chose to retire when Trump became President knowing he would appoint his successor, and he was the swing vote on Obergefell and the author of the opinion, interesting decision because anyone of even mild intelligence would realize a Trump justice would quickly undo any legacy Kennedy might have staked out here–and Obergefell was considered a legacy opinion by Kennedy. And I don’t know anyone who would assert Kennedy was possessed of only a “mild” intelligence.
I wonder how much would be different if instead of extending privacy to contraception the Court instead that it was an unenumerated right for a person to decide on procreating or not. I think fewer people would have an issue with that.