Yes, but I interpreted the question as implying that entire constitution applied to the states. And Miller’s subsequent post indicates I was correct in that assumption (although obviously not to the specific example **Bricker **used.)
But I certainly didn’t mean that states can ignore the constitution where it explicitly puts limits on the states (or when the SCOTUS has ruled that the constitution applies to the states). Sorry if that was confusing.
Miller: If you read the wiki link, it gives a good outline of how the various amendments have been applied to the states. And yes, lots of people would call that judicial activism.
I think a salpingectomy is the more common surgical solution (and I think many are also treated with medication), but “hysterectomy” is a more familiar term to most people. WAG, a hysterectomy may also be needed in severe cases.
Did you see that the discussion that led up to my post was not a commentary on how things actually are right now, but rather how things might work in a purely textual-analysis world?
Your question appears to be asking me what states can do now. Or are you asking what states could do in a pure textualism world?
I’m merely pointing out that this is a state of affairs not carved in granite. It’s merely a matter of putting the question to a Court that has at least five members that agree with me.
The tumor won’t grow into a person. A two-week old fetus will. That’s the distinction.
But where does the Constitution forbid that? I mean, since Roe, that’s what the Constitution was held to mean, but that decision was not based on sound principles of legal reasoning. And as a result, it can be changed by five Supreme Court justices. If the Constitution really SAID what you claim, then it would take 2/3s of Congress and 3/4ths of the states to make a change. That’s the difference. It’s a Constitutional issue only by dint of the desire of the Roe court to write social policy.
Jumping Jehova’s Witnesses, this is not that complicated. Do you, or don’t you think that States can pass laws banning things like saying fire in a theatre.
Man, I didn’t think my question was that hard to understand. Let’s try it as a series of simple yes or no questions, followed by one essay question:
Right now, in the real world, if a state made a law limiting political speech, that would be struck down as unconstitutional. Is this a correct understanding of current law?
Right now, in the real world, if a state made a law making it illegal to shout “fire” in a crowded theater, that would not be considered unconstitutional. Is this a correct understanding of the current law?
Nowhere in the Constitution or any of its ammendments is there any explicit allowance for the above exception to freedom of speech. Is this correct?
Now, the essay question: how is the above not judicial activism, when Roe v. Wadeis?
On preview:
Why do I suddenly feel like I’m in a scene from the movie Clue?
Yes, but… you assume that “freedom of speech” means “absolutely no penalties attached to any speech”.
Because the only thing that’s going on is interpreting the text: “freedom of speech” and deciding what those words mean. Roe goes much further simply decidign what words in the Constitution mean. Roe takes as a given that there is a right of privacy, and then decides what THAT means. The right to privacy was created in turn by an earlier case, which in turn drew on an earlier case. It’s that “totem pole” approach I’m questioning.
When you interpret the words, and assign them a reasonable meaning, that’s not judicial activism. When you build upon the words to create your own words, interpret THEM to add still more words, and then interpret THEM, then you’re walking down the judicial activism road.
That seems to be a petty concern, the so called right to privacy is derived directly from the liberty clause in the 14th amendment. Abortion is simply included in that catch-all phrase.
Although I seem to be talking only to myself, I’ll try again. Using your analogy, is there anyplace on the totem pole that you accept, or is the whole totem pole rotten? Legislatures, in your view, are constitutionally permitted to require mandatory sterilization, or to make conception illegal. There is no right to personal autonomy in your Constitution?
To follow Miller’s step-by-step lead, do you agree with judicial review? Do you believe the judiciary has the power to find acts of the legislature unconstitutional? Do you believe that the judiciary is the final arbiter of the Constitution? Do you believe the 9th Amendment recognizes that there are rights that are not enumerated in the Constitution? Do you believe that, despite judicial review, the judiciary is foreclosed from interpreting what those unenumerated rights are? Show your work.
What about when you interpet the words and assign them a reasonable meaning, and someone else interprets the words and assigns them a reasonable meaning, and the two reasonable meanings lead to contradictory outcomes?
That’s fine. That’s why we need judges, and not automatons. I don’t think the meaning of “unreasonable search” should include infrared monitoring. To me, it makes perfect sense that your house is radiating infrared for anyone to see; looking at it, even with special equipment, is not unreasonable. The Kyllo court disagrees with me. They think that set of facts IS an unreasonable search. Fair enough. Someone has to make the call. They did.
As long as their METHOD is, “Read the text. Assign a reasonable meaning to the text, not overly strict nor overly expansive, but simply REASONABLE,” then I will not be heard to complain. Much.
(That is, I may grouse about a decision I wish would go the other way; I won’t argue that the method used was suspect.)
But it’s that totem-pole approach I object to. Deriving a whole, expansive right - “privacy” from the vague phrasing in the Fourteenth Amendment is questionable enough. Then deciding that “privacy” AS THE CONSTITUTION REQUIRES means no government interference in the first trimester, but permits government regulation in the third trimester, is simply unsupported. If you took fifty people, all unfamilar with the history of Roe and abortion in this country, and said: “Read the text of the Fourteenth Amendment,” – how many of the fifty would reach the same conclusion that Roe did?
The base of the totem pole is soft wood. The higher you go, the more termites you find. At the top is Lawrence, filled with pockets of air.
There is not. There should be. And if the courts interpreted it correctly, then the need for actual amendments guaranteeing those rights would be clear, and we’d have them written in black letters in the Constitution by this time.
Yes, and yes.
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Do you believe the 9th Amendment recognizes that there are rights that are not enumerated in the Constitution?
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Yes.
The problem is that there is no principled boundry to simply saying, “The Ninth Amendment covers this right!” I say the Ninth Amendment covers the rights of unborn babies to live, the rights of felons to vote, and the rights of me to get oil rubdowns from Helen Hunt. Prove me wrong!
The Ninth Amendment cannot be interpreted in that way; the result would be that it means whatever the current crop of judges want it to mean. You cannot interpret a law into an absurdity; we assume the drafters never intend an absurd result, or to give the judicial branch unfettered interpretive powers. What the Ninth Amendment must therefore protect is the class of rights necessary to directly implement the rights mentioned in the Constitution: you have a right to a free press, but the government has a right to prevent you from buying paper and ink. No – even though the right to buy paper and ink is not explicitly mentioned, the right to a free press implies it. But that’s as far as it goes. The farther we step away from the ennumerated rights, the skaier ground we’re on, judicially, and the stronger the need for a legislative, not a judicial, solution.
