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Constitutional right to privacy a figment of imagination
Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

Posted on 01/15/2006 8:59:46 AM PST by Dog Gone

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To: RKV
"If you read the Senate debate on the 14th, then it is pretty clear that is what was intended - application of the BOR to the states, that is."

Well then it was one of the better kept secrets, in that neither the U.S. Supreme Court nor the Senate itself thought the 14th applied the BOR to the states.

A mere nine months after the 14th was ratified, the USSC ruled in Twitchell v. Pennsylvania that the Bill of Rights restricted only the federal government, not the states. Nobody mentioned the 14th Amendment.

Eight years after the 14th was ratified, Congress was considering the "Blaine Amendment", a proposed constitutional amendment to impose the First Amendment's religious freedom mandates on the states as well as the federal government. Why would they do that if the 14th amendment already applied the First Amendment to the states?

61 posted on 01/15/2006 11:23:16 AM PST by robertpaulsen
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To: DoughtyOne

"This seems fairly clear to me. If this isn't a guarantee of privacy, what is?"

Ya beat me too it! "The right of the people to be secure in their persons"!!!! That says it all right there.


62 posted on 01/15/2006 11:23:40 AM PST by dljordan
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To: narby
The BOR only applied to the federal government. The federal government, for example, could not restrict the freedom of the press -- but the states could, and did.

The 14th amendment was part of a trilogy (13th, 14th, & 15th) to deal with the newly freed slaves. The slaves were not citizens of any state and consequently had no state-protected rights or privileges. The 14th amendment made them "citizens of the United States", and extended some fundamental privileges and immunities to them.

63 posted on 01/15/2006 11:32:50 AM PST by robertpaulsen
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To: DoughtyOne
Good Post
64 posted on 01/15/2006 11:33:21 AM PST by Fiddlstix (Tagline Repair Service. Let us fix those broken Taglines. Inquire within(Presented by TagLines R US))
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To: narby
"The only prohibition that should be possible with federal law on acquiring substances should be interstate commerce."

That's like saying the federal government should only be allowed to regulate interstate air travel. You're saying that an individual should be able to fly his private plane anytime and anywhere in the state he wants, including federally regulated air corridors and commercial landing patterns.

Since this private flying would have a substantial effect on interstate air travel, Congress has the power to also control this private activity. Makes sense, doesn't it?

Well, Congress has determined, in a Congressional finding, that your personal use of marijuana also substantially affects their interstate regulatory efforts. Ergo, ....

65 posted on 01/15/2006 11:41:28 AM PST by robertpaulsen
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To: wolfcreek

Short history of abortion?

Well, it started with the first human culture to have any organized use of herbs or tools.
EVERY culture has had access to abortion, ranging from ingesting varied herbs, to beating the belly of the pregnant woman, and to internally invasive means.

You may have to look hard to find any factual information on early abortion methods, I seem to recall reading that sharing such information is now illegal.

I can say that I found out from an out of print book that a certain plant which is an abundant native species in Nevada was used as an aborticant by the native tribes for centuries.

No matter what laws may be passed, the ancient wish to control the timing, sex, or sire, of a pregnancy will continue, and means to accomplish it WILL be found.
Not what the anti- abortion absolutist want to hear, just a fact.

In many parts of this world merely being suspected of having sex without marriage can get you killed, yet unmarried people in those regions still have sex.

A majority may be able to legislate their version of morality, but cannot always effectively enforce it!
If they could, Pol-Pot, Hitler, Stalin, the late Ayatollah of Iran, etc. would be much more respected than they currently are.

Eventually technology will provide for abortion in private, to such a degree that no one other than the woman will ever know.


66 posted on 01/15/2006 11:43:53 AM PST by Richard-SIA ("The natural progress of things is for government to gain ground and for liberty to yield" JEFFERSON)
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To: dpa5923
"Only God (or natural law if you prefer) can grant rights."

True.

"States on the other hand, infringe on rights."

Not quite. States (actually the citizens of the states) decide which of these natural rights they will protect and to what extent. Your right to speech is protected, but not a right to slander. In Chicago, you have a right to defend yourself, but not with a gun.

67 posted on 01/15/2006 11:46:04 AM PST by robertpaulsen
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To: DoughtyOne; Dog Gone

It is a specific, enumerated and limited right as opposed to "you can do sodomy, cocaine and counterfiting' in the 'privacy' of your bedroom.


68 posted on 01/15/2006 11:46:48 AM PST by narses (St Thomas says “lex injusta non obligat”)
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To: DoughtyOne

Keywords here are: unreasonable searches and seizures

Before the FBI comes busting down the door, they'd better make absolutely sure they've got the right person and not an innocent party with the same name. "Sorry" doesn't count!


69 posted on 01/15/2006 11:52:13 AM PST by Fruit of the Spirit
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To: narses

It's a limitation on searches, not a general bestowal of a right to privacy.


70 posted on 01/15/2006 11:53:36 AM PST by Dog Gone
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To: Dog Gone

Do YOU understand that the U.S. Constitution does not "create" ANY rights?
It only confirms, and thus attempts to protect, our pre-existing natural rights!

The Ninth amendment was adopted for good reason, this jerks reasoning only proves the ninth's necessity.


71 posted on 01/15/2006 11:55:55 AM PST by Richard-SIA ("The natural progress of things is for government to gain ground and for liberty to yield" JEFFERSON)
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To: RKV
f you read the Senate debate on the 14th, then it is pretty clear that is what was intended - application of the BOR to the states, that is.

Of course that's false. Most of the BOR was not incorporated until the 20th century. The first was the 5th Amendment in 1897. There is a SCOTUS case in the mid 1920s that even clearly stated the 1st Amendment was not incorporated to the states. This was not done until the late 1920s/early 1930s

72 posted on 01/15/2006 11:59:33 AM PST by billbears (Deo Vindice)
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To: dpa5923

You are right that rights are granted by God and government exists to protect those rights. However the argument advanced in Roe Vs. Wade did not deal with that question. It dealt with the question of is there a constitutional right of privacy that makes moot any State law on the issue of abortion.
Also the right against unreasonable searches and seizures has nothing to do with the right of privacy. It has to do with the right of citizens to due process. It also acknowleges that government in excercising its power is subject to lawful restraints. If it did have to do with a right to privacy it could be argued that any search or seizure violates the right to privacy. Since you can not gather evidence against a person without violating their privacy.
The government can not search your premises or persons without following legal procedures. But provided those procedures are followed a right to privacy will not prevent them from learning about every aspect of your life and using it as they see fit.


73 posted on 01/15/2006 11:59:43 AM PST by lastchance (Hug your babies.)
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To: wolfcreek

Abortion is mentioned in the Hippocractic Oath. It is also mentioned in an early Christian document called the Didache. So it was well known in antiquity.


74 posted on 01/15/2006 12:01:07 PM PST by lastchance (Hug your babies.)
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To: zeugma

The post I would like to have written!

BRAVO!


75 posted on 01/15/2006 12:01:11 PM PST by Richard-SIA ("The natural progress of things is for government to gain ground and for liberty to yield" JEFFERSON)
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To: Dog Gone

"The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution."

These people who assert that we only have the rights that are enumerated in the Constitution have it all wrong. The Constitution was written to restrain government, not to limit the rights of the people.

I do have a right to privacy, arguably through the 4th Amendment,and also because God gives me one. Privacy, the right to be left alone as long as you are not hurting anyone else, is a natural right. I do not need government permission to be left alone.

Besides, the Constitution and the Bill of Rights states very clearly that the enumeration of certain rights is not intended to disparage other, unenumerated rights that we also have. An unenumerated right is just as much of a right as an enumerated one.


76 posted on 01/15/2006 12:01:24 PM PST by Altamira (Get the UN out of the US, and the US out of the UN!)
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To: Dog Gone

Thank you, you said it better and more clearly than I did.


77 posted on 01/15/2006 12:03:26 PM PST by narses (St Thomas says “lex injusta non obligat”)
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To: Altamira

You have a right to privacy, but that is not an absolute right.


78 posted on 01/15/2006 12:05:13 PM PST by narses (St Thomas says “lex injusta non obligat”)
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To: Richard-SIA
Don't get hung up in the semantics. Your "constitutional rights" are those rights you have which are recognized and protected by the Constitution. You'd be hard-pressed to assert the same rights protected by the First Amendment if it never existed and you were instead asserting them under the Ninth.

If you're asserting that the Ninth Amendment is the source of your federally-recognized constitutional right to privacy, then you had better be prepared for the Court to use it as the basis to issue all kinds of amendments to the Constitution by judicial fiat.

79 posted on 01/15/2006 12:07:26 PM PST by Dog Gone
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To: Dog Gone
Dog Gone wrote:

You fail to understand his argument.

He's not denying that a right to privacy might exist. He's saying that it would be the creation of the state legislature or one reserved to the people.

It's not one created by the US Constitution.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


The judge wrote:


"-- The right of privacy is not one of the rights enumerated in the Constitution, and consequently, the Ninth Amendment gives us two instructions:

first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution;
and second, we are required to recognize that any such right of privacy is "retained by the people."

" --Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so. --"

"-- Likewise, the Tenth Amendment simply states, "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."

The Constitution does not delegate to the Supreme Court (or any other branch of the U.S. government) any power to define, apply, or enforce whatever may be the right of privacy retained by the people.

Similarly, the U.S. Constitution does not prohibit any state in particular, nor all states in general, from defining, applying or enforcing whatever the people of that state may choose as the right of privacy.

Therefore, as the Tenth Amendment clearly provides, the power to define, apply or enforce a right of privacy is "reserved to the states respectively, or to the people."
By finding a constitutional right of privacy that is not expressly enumerated in the Constitution, the Supreme Court has "usurped" the roles and powers of the people, the Congress, and the state legislatures. --"

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


This statement is one of the most bizarre I've ever seen by a judge:

"-- Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so. --"

He admits that a right exists, one that he is not bound to support and defend, despite his oath as a judge to do exactly that.

Weird fella. He should be removed for 'bad behavior'
80 posted on 01/15/2006 12:10:41 PM PST by don asmussen
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