# The Constitution does not address abortion? Really? **URL:** \ **Category:** Great Debates\ **Created:** [October 12, 2012, 10:23pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570 "2012-10-12T22:23:50Z")\ **Posts on this page:** 15\ **Page:** 7
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 24, 2012, 2:41pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/121 "2012-10-24T14:41:21Z")
> [@Saint\_Cad](#): > > And the right to own property and not have it seized and given to a private individual simply because they will pay more property taxes is “deeply rooted” in our history until _Kelo_ tossed that into the shitter. So many people misunderstand the Kelo decision. It wasn’t decided on the issue of the right of property. It was decided on the issue of judicial restraint. The majority didn’t rule that taking property for commercial reasons was a good idea. What they ruled was that the city of New London thought it was a good idea. And they said that issues like eminent domain were best left to local legislatures like the New London city council (which was answerable to the voters) not decided by judges. So what Stevens, Kennedy, Souter, Ginsburg, and Breyer said was that the Supreme Court shouldn’t overrule local governments just because they thought the local government had made a bad decision. And O’Connor, Rehnquist, Scalia, and Thomas dissented - they said the Supreme Court should overturn the law because it was a bad law. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 24, 2012, 3:24pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/122 "2012-10-24T15:24:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Kind of. Skinner v. Oklahoma established that compulsory sterilization _of men_ required strict scrutiny analysis because procreation was a fundamental right, but actually struck down Oklahoma’s sterilization law only because it was stupid\*, rather than because it infringed on convicts’ rights. > > \*the law provided for sterilization as a punishment for an essentially random selection of crimes; a third strike for larceny could lose you your balls, but a fiftieth strike for embezzlement couldn’t. My reading of _Skinner_ still allows for state-sponsored eugenics programs which is why forced sterilizations were carried out until the 1970’s and are only now not carried out because the laws are off the books. > [@Little\_Nemo](#): > > So many people misunderstand the Kelo decision. It wasn’t decided on the issue of the right of property. It was decided on the issue of judicial restraint. > > The majority didn’t rule that taking property for commercial reasons was a good idea. What they ruled was that the city of New London thought it was a good idea. And they said that issues like eminent domain were best left to local legislatures like the New London city council (which was answerable to the voters) not decided by judges. > > So what Stevens, Kennedy, Souter, Ginsburg, and Breyer said was that the Supreme Court shouldn’t overrule local governments just because they thought the local government had made a bad decision. And O’Connor, Rehnquist, Scalia, and Thomas dissented - they said the Supreme Court should overturn the law because it was a bad law. But the point is that _Kelo_ did fundamentally change the conditions under which eminant domain can be implemented and in doing so took away a right that was “deeply rooted” in our system in that our property is safe from arbitrary seizure by the government. The fact that so many states passes updated eminant domain laws/amendments immediately after _Kelo_ shows that many felt that a fundamental right had been taken away. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 24, 2012, 3:25pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/123 "2012-10-24T15:25:46Z")
> [@Saint\_Cad](#): > > My reading of _Skinner_ still allows for state-sponsored eugenics programs which is why forced sterilizations were carried out until the 1970’s and are only now not carried out because the laws are off the books. I agree. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 24, 2012, 8:29pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/124 "2012-10-24T20:29:25Z")
> [@Saint\_Cad](#): > > But the point is that _Kelo_ did fundamentally change the conditions under which eminant domain can be implemented and in doing so took away a right that was “deeply rooted” in our system in that our property is safe from arbitrary seizure by the government. The fact that so many states passes updated eminant domain laws/amendments immediately after _Kelo_ shows that many felt that a fundamental right had been taken away. There was no deeply rooting right protecting private property from seizure. Eminent domain had existed since before the country was founded so property could be seized all along. The only new thing were recent laws that expanded the grounds for seizure. The number of laws passed in the wake of Kelo was what the court’s intended. They said that these decisions should be made by legislatures not courts. Isn’t that the position conservatives claim they want the court to take on issues like abortions and gay marriage? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 24, 2012, 11:46pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/125 "2012-10-24T23:46:40Z")
> [@Little\_Nemo](#): > > There was no deeply rooting right protecting private property from seizure. Eminent domain had existed since before the country was founded so property could be seized all along. The only new thing were recent laws that expanded the grounds for seizure. > > The number of laws passed in the wake of Kelo was what the court’s intended. They said that these decisions should be made by legislatures not courts. > > Isn’t that the position conservatives claim they want the court to take on issues like abortions and gay marriage? Even if I grant you that, show me what “deeply rooted” has to do with the Ninth Amendment or any other protection of rights in the Constitution. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2012, 1:55am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/126 "2012-10-25T01:55:50Z")
> [@Saint\_Cad](#): > > Even if I grant you that, show me what “deeply rooted” has to do with the Ninth Amendment or any other protection of rights in the Constitution. Simply that there is no deeply rooted right to not have your property seized by eminent domain. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 25, 2012, 1:40pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/127 "2012-10-25T13:40:37Z")
> [@Little\_Nemo](#): > > Simply that there is no deeply rooted right to not have your property seized by eminent domain. As long as it is for public use, not to generate more tax revenue. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 25, 2012, 1:55pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/128 "2012-10-25T13:55:17Z")
The “public use” limitation in the Constitution arose from the English common law rule, “for the public benefit”, which was construed extremely broadly. Land has been ceded to privately owned utilities and the like under eminent domain since the 1800s. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 25, 2012, 2:36pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/129 "2012-10-25T14:36:31Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The “public use” limitation in the Constitution arose from the English common law rule, “for the public benefit”, which was construed extremely broadly. Land has been ceded to privately owned utilities and the like under eminent domain since the 1800s. So does this mean that there has never been a right to not have your property seized by the gov’ment as long as they claim there is some public benefit such as building a school, relieving blight or generating more tax? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 25, 2012, 2:51pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/130 "2012-10-25T14:51:48Z")
Yeah, [kinda](http://en.wikipedia.org/wiki/Berman_v._Parker). The New London redevelopment plan was not for the sole purpose of “generating more tax”. It was also to attract jobs (though in the end it wound up generating neither tax receipts nor jobs). ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2012, 3:45pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/131 "2012-10-25T15:45:57Z")
> [@Saint\_Cad](#): > > As long as it is for public use, not to generate more tax revenue. And it’s up to institutions like the legislatures and the courts to define what public use is. ---
**Author:** ![monavis](https://avatars.discourse-cdn.com/v4/letter/m/e0b2c6/32.png) [@monavis](https://boards.straightdope.com/u/monavis)\ **Post date:** [October 26, 2012, 11:35am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/132 "2012-10-26T11:35:36Z")
> [@stevenova](#): > > Why do you have a right to kill your own child, a “choice” to do that if it’s inconvenient to you, but you can’t choose to sm oke in your own home? You don’t,by our laws, have the right to kill your own or any child, it just allows a woman to abort before it becomes a child. Just as breaking a fertile egg is not killing a chicken. That is biology, not religious belief, and we do have Separation of Church and State. No one can be forced to have and Abortion and those who don’t believe in it don’t need to have one.Nor can they be forced to have one. ---
**Author:** ![monavis](https://avatars.discourse-cdn.com/v4/letter/m/e0b2c6/32.png) [@monavis](https://boards.straightdope.com/u/monavis)\ **Post date:** [October 30, 2012, 12:14pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/133 "2012-10-30T12:14:04Z")
> [@stevenova](#): > > Should someone be allowed to have an oven or a deep fryer in a multi unit building? > > I see the right to privacy means so much to you. > > Kill your child if it’s inconvenient, but you cant choose to smoke in your own home. > > The libby concept of “choice” is limited to anal sex and ab ortion as birth control. It is not true that one is able to kill one’s own child, just that the so called right to Lifer’s use that expression. but a fertile egg, an embryo, etc. is not a child, and if a woman’s life is at stake it is her choice if she decides to chance that it would be her life or the child, if she has aleady a few childen it would mean they live without a mother, If the chances are that both may die it is still her life to consider, and not someone else’s religion. After a certian point an abortion is not legal. Why not pray that if a woman doesn’t want to conceive God will not allow her to…or don’t pro-birthers believe in Prayer? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 30, 2012, 12:27pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/134 "2012-10-30T12:27:21Z")
> [@jtgain](#): > > 1. I dispute that there should be a “creation of rights.” Either the constitution recognized them at the founding (or at the time of ratification of an amendment) or it didn’t. If it didn’t, then a new amendment is in order to recognize a new right. You’re new amendment is already in there: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 30, 2012, 12:31pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/135 "2012-10-30T12:31:38Z")
> [@Bricker](#): > > If you interpret the Constitution as meaning whatever the current crop of federal judges wish it to mean, it’s less a source of rights than it is a complete evisceration of our notion of elected self-governance. If you interpret the Constitution to exclude the judiciary from it’s proper role in the protection of individual rights, than it is nothing more than the tyranny of the majority and an overthrow of the separation of powers and checks and balances integral to our government. This is fun! [Previous page](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570.md?page=6)