Putting this in GD since it’s a little too broad for GQ. As the recent actions in South Dakato bring up the Roe vs Wade argument for the umpteenth time, I decided I need some background info about the whole subject of what can and can not be proscribed by law in the United States.
Here’s what I understand to be true, please correct if necessary:
The US Constitution declares that people have inaliable rights that no legitimate government of a free people should impinge upon. Some are stated explicitly, and the rest are held to be implicit under the Ninth amendment. As originally written this technically only applied to actions of the federal government but subsequent amendments are held to apply it to the states as well.
The constitution itself does not provide a mechanism for addressing or correcting impingements of rights by the government. This has been handled by the Supreme Court’s famous Marbury ruling that said that the Supreme Court can declare laws unconstitutional, and therefore null and void. Under the common law doctrine followed by the United States, court rulings set precedents that form the foundation for further decisions.
In various cases that have reached the Supreme Court, the court has consistantly rejected libertarian arguments, and has declared that the government has a legitimate compelling interest in regulating society and personal behavior.
In Roe VS Wade the Supreme Court ruled that laws flatly proscribing abortion are an infringement of a “right to privacy” that was held to be implicit in the US constitution, it’s amendments and the body of jurisprudence that previous court rulings have established. Many detractors bitterly disagree.
So I"m rather confused as to what can and can not be made illegal in the United States. And by the noise of the whole debate I would guess a lot of other people are too. Clarification would be greatly appreciated.
I know there’s a question buried in there somewhere, it’s just hard to get to.
First of all, regarding laws that are judged by the SC to be constitutional and unconstitutional, it’s important to go back to the Constitution and distinguish federal and state powers. The federal government is limited in several important ways. For instance, there is no general federal police power. This means that the federal government can’t make murder illegal across the US if federal land or federal employees are not involved. The federal government may be able to come up with a justification for such a law if it relates to one of its defined powers, such as regulating interstate commerce or the responsibilities of the president as commander-in-chief.
Everything else falls to the states to make legal or illegal, since only states have general police powers. Police powers are generally the laws and regulations of a state that allow them to place certain restrictions on personal freedoms or property rights for the protection of the public saftey, health, and morals of the citizenry.
If you want to understand how the Supreme Court came up with its imputed right to privacy rationale, you’ll have to look at the cases before Roe and at least one after it. Specifically, Griswold v. Connecticut 381 U.S. 479 (1965), a case involving the availability of contraception to married couples, is the Supreme Court case in which the Court ruled there is a constitutionally protected right to privacy. Eisenstadt v. Baird, 405 U.S. 438 (1972), extended this right to privacy for contraception to include non-married couples.
In Planned Parenthood v. Casey, 505 U.S. 833 (1992), a plurality opinion affirmed Roe v. Wade, but modified its rationale by emphasizing that the right to an abortion was grounded in the general sense of liberty under the Fourteenth Amendment rather than a general right to privacy implied from taking the “penumbras” of the first eight amendments and combining it with the entirety of the Ninth Amendment. Since this is a plurality and not a majority opinion, however, its rationale is not binding on any subsequent SC decision.
Often there are two conflicting issues at hand, both of which are protected by the Constitution or common law and the justices must decide which one has more weight in the given situation.
For example, in Roe v. Wade, the State of Texas claimed a compelling state interest in protecting the life of the fetus which SCOTUS felt was outweighed by the right to privacy.
Actually the state’s interest was thrown out on a (IMO incorrect) technicality since under the 14th Amendment a person is not a US citizen until they are born, Texas could declare that unborn fetuses are Texas citizens and can be afforded protections under state laws. This was a result of the Dred Scott decision (i.e. a state can make whomever they want a state citizen but this does not make them a US citizen and AFAIK this principle has never been challenged).
However, drunk driving roadblocks are legal (there’s a thread somewhere with all of the cites) since SCOTUS has decided the state’s interest in protecting the highways from drink drivers outweighs my 4th Amendment protections (as long as it’s minimal)