If the court overturns all privacy rights precedents?

[Jay59]

While I disagree that states should have the power to take away people rights to travel, marriage, presumption of innocence etc; I respect your honesty.

The states have the power to end your life. The rest is relative to that.

That said, the full faith and credit clause has great weight in this context. I disagreed with Loving at the time, because the states were moving to a consensus on same-sex marriage.

I believe you are misinterpreting the 10th amendment. It doesn't direct unenumerated rights to the states...actually quite the opposite.

The exact wording is, "are reserved to the states."

Your argument actually flies in the face of the entire federalist/anti federalist argument for both the 9th and 10th amendment and would make the 9th amendment itself serve absolutely no purpose.

Neither the 9th nor the 10th serve as the basis for much case law. They are statements of honoring broad legal principles.

We have enumerated rights like the 2nd. We have unenumerated rights, based on constitutional interpretation by SCOTUS ...

Name one.

...And the tenth amendment gets the rest.

Which sends them to the states.

 

[NWRatCon]

While I disagree that states should have the power to take away people rights to travel, marriage, presumption of innocence etc; I respect your honesty.

I believe you are misinterpreting the 10th amendment. It doesn't direct unenumerated rights to the states...actually quite the opposite.

Your argument actually flies in the face of the entire federalist/anti federalist argument for both the 9th and 10th amendment...

Light editing for character limits...

I agree with this basic argument. Jay59 is ignoring the second half of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

We're approaching this discussion bass ackwards. The 14th Amendment specifies that "No State shall...". That fundamentally changed the relationship between States and federal authority under the Constitution, particularly with regard to this 10th Amendment balance.

Moreover, it explicitly protects "the privileges or immunities of citizens of the United States" from State abridgement. This is also where the current conservative cabal grossly misstate the Constitution itself to achieve its ends.

The 9th Amendment explicitly acknowledged the existence of rights - privileges or immunities - not enumerated in the text. Discernment of such a privilege or immunity by the Court makes it something that cannot be abridged by a State law, thus obviating that provision of the 10th Amendment. Not only is it not "prohibited by it to the states", but it is prohibited, by the 14th Amendment, from the States.

Privacy is exactly the kind of "unenumerated right" that the 9th Amendment encompasses. Even conservative scholars acknowledge this. So to is "the right to travel", and "the right to vote". Travel and voting are privileges in the parlance of the day, whereas privacy would be an immunity - a disruption or intrusion that is prohibited from violation.

In each case the States are prohibited from encroaching upon them by the 14th Amendment, and not authorized by the 10th Amendment to do so.

 

[Indlib]

Light editing for character limits...

I agree with this basic argument. Jay59 is ignoring the second half of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

We're approaching this discussion bass ackwards. The 14th Amendment specifies that "No State shall...". That fundamentally changed the relationship between States and federal authority under the Constitution, particularly with regard to this 10th Amendment balance.

Moreover, it explicitly protects "the privileges or immunities of citizens of the United States" from State abridgement. This is also where the current conservative cabal grossly misstate the Constitution itself to achieve its ends.

The 9th Amendment explicitly acknowledged the existence of rights - privileges or immunities - not enumerated in the text. Discernment of such a privilege or immunity by the Court makes it something that cannot be abridged by a State law, thus obviating that provision of the 10th Amendment. Not only is it not "prohibited by it to the states", but it is prohibited, by the 14th Amendment, from the States.

Privacy is exactly the kind of "unenumerated right" that the 9th Amendment encompasses. Even conservative scholars acknowledge this. So to is "the right to travel", and "the right to vote". Travel and voting are privileges in the parlance of the day, whereas privacy would be an immunity - a disruption or intrusion that is prohibited from violation.

In each case the States are prohibited from encroaching upon them by the 14th Amendment, and not authorized by the 10th Amendment to do so.

Thank you. Very good articulation of the nuances of the 9th and 10th amendment.

I am no constitutional scholar by any means but jay59s contention that 10th directs unenumerated rights to the state is absurd.

It is concerning that people believe that kind of thing.

 

[Jay59]

I agree with this basic argument. Jay59 is ignoring the second half of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

We're approaching this discussion bass ackwards.

Yes, you are. The second half of the 10th is the part that reserves powers to the states.

The 14th Amendment specifies that "No State shall...". That fundamentally changed the relationship between States and federal authority under the Constitution, particularly with regard to this 10th Amendment balance.

The relationship between state and federal authority changed but not by much. The 10th expressly anticipates powers being prohibited to the states. You highlighted the language yourself.

Moreover, it explicitly protects "the privileges or immunities of citizens of the United States" from State abridgement. This is also where the current conservative cabal grossly misstate the Constitution itself to achieve its ends.

The 9th Amendment explicitly acknowledged the existence of rights - privileges or immunities - not enumerated in the text. Discernment of such a privilege or immunity by the Court makes it something that cannot be abridged by a State law, thus obviating that provision of the 10th Amendment. Not only is it not "prohibited by it to the states", but it is prohibited, by the 14th Amendment, from the States.

Privacy is exactly the kind of "unenumerated right" that the 9th Amendment encompasses. Even conservative scholars acknowledge this. So to is "the right to travel", and "the right to vote". Travel and voting are privileges in the parlance of the day, whereas privacy would be an immunity - a disruption or intrusion that is prohibited from violation. In each case the States are prohibited from encroaching upon them by the 14th Amendment, and not authorized by the 10th Amendment to do so.

There are many unenumerated rights that have been zealously guarded by the courts and often codified into law.

With one exception. none of them rise to the level of a Constitutional right. The sole exception was just overturned.

 

[Lursa]

As many times as you post this, people will continue to point at that, AT SOME POINT, that unborn (your term) becomes a life, and THAT life also needs protecting. This is the differentiation between all those other privacy rights and abortion. They are not remotely the same and it is a disservice to conflate the two.

That's not a very well-informed post. The unborn is a life from the moment of fertilization/implementation. "Life" is biologically defined and objective. Science is not an authority on laws or values or rights. It recognizes no rights for any stage of any species.

Legally however rights have been defined and so has "person". And so has who has those rights recognized. In the US, no rights are recognized for the unborn. If you disagree, please post laws saying so.

Women OTOH, do have rights. So...which life should take precedence? That can be personal opinion but legally the govt is obligated to protect women's Const rights. Do you agree? Yes or no? Is it obligated to protect the unborn's life? Yes or no? If yes, please source where that is stated.

And I dont just mean breathing, a heart beat, a life is much more than that...it's self-determination and liberty (The positive enjoyment of social, political, or economic rights and privileges)...if you would take that from women to instead confer the exact same thing on the unborn...what is the legal justification for that? (They cannot be treated equally under the law...if you disagree, please specify how?)

 

[NWRatCon]

Thank you. Very good articulation of the nuances of the 9th and 10th amendment.

I am no constitutional scholar by any means but jay59s contention that 10th directs unenumerated rights to the state is absurd.

It is concerning that people believe that kind of thing.

The problem with a lot of absolutist ... ahem... "thinkers" of the "state's rights!" ilk is that their argument are almost always absurd. I'm probably the only one on these boards who has actually argued a "State right" issue to the Supreme Court (on behalf of a State, and successfully), so I come at this with a pretty good understanding of the subject matter.

The problem with the formulation usually used (depending on the desired outcome) is that it presumes that "rights" flow from government, either State or federal. That is fundamentally at odds with the philosophical and legal understanding of the founders. The reverse is actually true.

They were, by and large, adherents to "natural right" theory - that is, all individuals have "inherent rights", either given by god or bestowed by nature - as in "we hold these truths to be self-evident, that all men are ... endowed by their Creator with certain unalienable Rights". Those rights precede government. So, "Governments are instituted among Men, deriving their just powers from the consent of the governed". That is why the Bill of Rights is structured as it is - acknowledging the accepted existence and parameters of some rights, but also expressly noting that others exist that are "unenumerated".

The responsibility of government thus becomes twofold: to protect those inherent rights of the governed, and but also to restrict those rights, as necessary, in the interests of others so governed. All governments restrict the rights of their citizens vis a vis each other, but with their implied consent. The question then becomes, how much restriction is allowed and by whom? (That's where the courts come in.)

It is true that the 10th Amendment was intended to act as a catch-all for the authority of State governments regarding their legislative powers, just as the 9th was intended to be a catch-all for unenumerated rights. The fundamental error in Jay59's formulation (and misunderstanding of the role of the 14th Amendment) is that those rights exist in individual citizens as a birthright, not as a grant from a government. Therefore, to take them away, requires an authorization from the governed.

Initially, the Constitution's Bill of Rights only operated against the federal government. Very early on it was realized that this formulation was a mistake, but the political power of the slave States prevented a correction of that error for several decades. After the Civil War, however, there was the political will and ability to execute that correction - the 14th Amendment.

That is why the language of the 14th Amendment was so specific - "No State shall..." and why the "privileges and immunities of citizenship" were specifically included in the Amendment.

It is important, in my view, to recognize that this principle applies to all such "inherent rights" whether enumerated, implied or unenumerated. The same proscription applies to privacy interests to protect abortions as to protect firearm possession. Ideologues don't like to think of it that way.

 

[Cope]

That's not a very well-informed post. The unborn is a life from the moment of fertilization/implementation. "Life" is biologically defined and objective. Science is not an authority on laws or values or rights. It recognizes no rights for any stage of any species.

Legally however rights have been defined and so has "person". And so has who has those rights recognized. In the US, no rights are recognized for the unborn. If you disagree, please post laws saying so.

Women OTOH, do have rights. So...which life should take precedence? That can be personal opinion but legally the govt is obligated to protect women's Const rights. Do you agree? Yes or no? Is it obligated to protect the unborn's life? Yes or no? If yes, please source where that is stated.

And I dont just mean breathing, a heart beat, a life is much more than that...it's self-determination and liberty (The positive enjoyment of social, political, or economic rights and privileges)...if you would take that from women to instead confer the exact same thing on the unborn...what is the legal justification for that? (They cannot be treated equally under the law...if you disagree, please specify how?)

Look, you can keep beating that dead horse all you want, I was simply proving to you the difference in abortion and other privacy 'rights'. There is a line that differentiates the two and that line is when that LIFE gets protected by the constitution.

If I were a a staunch pro-choice person (I am pro-choice just not an inflexible one) I would focus on getting agreement on that timeline, and stop screeching about the other privacy 'rights' that this court is, to you, coming to get.

 

[Lursa]

Look, you can keep beating that dead horse all you want, I was simply proving to you the difference in abortion and other privacy 'rights'. There is a line that differentiates the two and that line is when that LIFE gets protected by the constitution.

If I were a a staunch pro-choice person (I am pro-choice just not an inflexible one) I would focus on getting agreement on that timeline, and stop screeching about the other privacy 'rights' that this court is, to you, coming to get.

It comes under the same legal 'umbrella'...which already includes marriage, education, and reproduction. The only distinction you are making is that it's about the unborn life. And I'm pointing out that that unborn life has no legal status to be considered that should be allowed to violate women's rights.

That is based on federal law, even current law, outside of RvW.

 

[Cope]

It comes under the same legal 'umbrella'...which already includes marriage, education, and reproduction. The only distinction you are making is that it's about the unborn life. And I'm pointing out that that unborn life has no legal status to be considered that should be allowed to violate women's rights.

That is based on federal law, even current law, outside of RvW.

And I am telling you that , at some point, it is protected. That timeline is what needs to be addressed, not privacy or bodily autonomy.

 

[Lursa]

And I am telling you that , at some point, it is protected. That timeline is what needs to be addressed, not privacy or bodily autonomy.

Federally? At what point, please source that.

 

[Cope]

Federally? At what point, please source that.

Currently there is none, as the ruling just handed down.
So now it will be left to the states to decide the timeline but in most all cases, a timeline will be established.
And that is if you don't count fetal homicide laws (which are also State by State)

 

[Lursa]

Currently there is none, as the ruling just handed down.
So now it will be left to the states to decide the timeline but in most all cases, a timeline will be established.
And that is if you don't count fetal homicide laws (which are also State by State)

True but if the states pass laws that protect the unborn that violate women's Const rights or federal law in enforcement or charges, the federal supersedes the state laws (if challenged in court). Again, it's the Supremacy clause.

And no one challenges the fetal homicide laws in federal court...it seems most people find the extra charges appropriate and acceptable. I know I do.

 

[Lord Tammerlain]

What made abortion a privacy right? It wasn't mentioned anywhere in the constitution. In 1973 the court came to a decision and then went looking for a way to support their decision. Oddly the used parts of the Constitution that were not even part of the argument made by the left.

How does the government know a person is pregnant?

 

[Cope]

True but if the states pass laws that protect the unborn that violate women's Const rights or federal law in enforcement or charges, the federal supersedes the state laws (if challenged in court). Again, it's the Supremacy clause.

Huh? I am having trouble following such a law? Abortion, is not a federally protected right any longer. What law(s) are you referring to that could protect the life at the cost of the woman?

And no one challenges the fetal homicide laws in federal court...it seems most people find the extra charges appropriate and acceptable. I know I do.

I imagine there are some that see it as an unjust law but overall, you are likely correct. It just doesn't jive with the pro-choice crowd who are strict adherents to the my body-my choice mantra (complete body autonomy) and no timeline is lax enough.

 

[Lursa]

Huh? I am having trouble following such a law? Abortion, is not a federally protected right any longer. What law(s) are you referring to that could protect the life at the cost of the woman?

Ex: Criminal murder charges for a woman who aborts when the unborn is not recognized as a person or having any rights recognized at the federal level.

Ex: Stopping women travelling to other states for abortions and demanding proof of their reproductive status. Violates equal protection under the law and due process. (I skipped privacy, but that too).