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?
Because my neighbor having an abortion won’t give me emphysema?
Anyway - the smoking thread is here: The Nanny state increases: CA town bans smoking in all non detached private residences - Great Debates - Straight Dope Message Board
I’m going to restrict my comments on this topic to that thread from now on.
It doesn’t matter if today’s court would uphold Buck v. Bell. The point is whether Scalia would. After Buck, 42 states had compulsory sterilization programs.
I’ll buy the second argument, but that just means legislatures are free to force abortions on people if they aren’t married. Is that a better result?
I disagree that there is no end to creation of rights based on the living constitution argument. That said, even if I didn’t, at least it attempts to find an objective basis for the creation of rights. Textualism and originalism rely on vague legislative pronouncements, often spotty historical scholarship and… personal opinion. Take Scalia’s pronouncement about the “prefatory clause” in the 2nd Amendment for example.
What causes more deaths? Second hand smoke or abortion?
Should automobiles be banned given the health risks their exhaust causes?
Let’s try this again…
And if I brign up abortoin in that thread, you’ll direct me to this one.
What kills more? Second hand smoke or abortion? Which one is a liberal sacrement?
How do you know the home smoking ban was passed by liberals? Your link doesn’t reference any party affiliation.
Do you need me to prove water is wet too?
That’s just inflammatory.
stevenova, you’ve made your point about smoking. Let’s steer this back to the original thread topic.
-
Scalia’s point would probably be that the democratic process works. The “evolving standards” have manifested themselves in legislation that have outlawed compulsory sterilization. No need for judges to dictate the law.
-
Okay, there is a “deeply rooted” right for healthy people, married or not, to procreate. Better?
-
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.
Sure originalism and textualism might have some gray areas, but Scalia is absolutely right on the big issues of the day like abortion, sodomy, SSM, and the like. It strains logic to say that the 14th amendment protects either when the authors of that amendment didn’t address either and continued to outlaw them for a hundred years afterwards..
Do you feel that the original text of the Constitution civil rights to corporations? Does the Second Amendment cover automatic sidearms or does it only protect muskets? Are television, radio, and internet media entitled to freedom of the press or does it apply only to printed media? Does freedom of religion apply to Mormons or Hasidic Jews or Scientologists?
I think the Constitution outlines a set of general principles and then we apply those principles to our contemporary situations. And I think this was the intent of the Constitution’s original authors.
I don’t think I disagree with any of the forward presumptions you make. But when a specific thing (like abortion or sodomy) was proscribed at the founding, you can’t really say that it’s part of the constitution.
Sure, freedom of the press meant newspapers in 1776. It means blogs in 2012. The right to keep and bear arms meant muskets in 1776. It means pistols and revolvers in 2012. That’s a natural flow of technology.
But you can’t take something that was clearly prohibited and say, “Well, we have evolved past those old, tired thoughts.” The thoughts were there. If there is evolution in those thoughts, the legislatures can deal with them.
If you interpret the Constitution to protect only that which the founders explicitly intended it to protect, it’s less a source of rights than it is a horrible blight on our society.
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.
I was about to point out how big the excluded middle is there, but my arms aren’t long enough.
Pretty sure there’s no mention of abortion in the Constitution. For that matter, abortion isn’t mentioned in the Bible either. People read the Constitution and the Bible and they interpreted what they thought it meant.
Abortion wasn’t clearly prohibited in 1776. It wasn’t even controversial, at least prior to “quickening”, until around the 1860s. That’s when the state anti-abortion laws started to come in.
-
But until Buck v. Bell is overturned it is still the law of the land is it not? You cannot definitively say what SCOTUS will do. And if you study the history of Brown you’ll see that it wasn’t that SCOTUS woke up this morning and said “Holy crap! Separate ain’t equal!” but it had to be chipped away slowly and even then Plessy is still a precedent if you could somehow come up with a separate but equal scenerio like separate bathrooms for men and women in public facilities.
-
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. And what is your definition of healthy because according to our history of procreation laws it would be people who do not display behavior outside of societal norms (wayward girls or wild childs) and people not having sex with someone of another race (miscegenation).
-
Let’s look at the Ninth Amendment
I don’t see anything that states that the right must have been in effect at the time of the amendment’s passing or has to be “deeply rooted” in our history and traditions. I would argue that once The Pill was invented and women had a safe contraceptive to use, that a right to use it was created. In fact, I believe Sarah Weddington made a similar arguement in Roe v Wade in that the nature of abortions had changed and this was not reflected in the law.
I agree it is difficult to ascertain when exactly something is a right and I do believe it reflects societal attitudes BUT I do not believe it should reflect the judge’s personal beliefs. That is a very thin line I admit and whereas Griswold I believe correctly determined contraception usage as a right I am not wholy convinced that abortion is properly a right* and instead I believe Roe was ruled on the way it was because the Warren Court being pro-choice.
- For the record I am pro-choice. Wait Cad I thought you were a Republican. I am. :eek:
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.