I know all this stuff is going to come up regardless but i wouldn’t mind if his views on this issue were kept more discreet by conservatives so that the libs can’t abuse it for leverage. I don’t think it’s in our interest for him to be so easily pinned down on this issue by the left.
<>(In Glucksburg) Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition.<>
That strikes me as a reasonable standard. What is not reasonable is the welling up of rights from judges. When the sovereign people of a state amend their Constitution, as California did against homosexual marriage, THAT is the proper fount of rights. And a proscription of homo-marriage is consistent with out history and traditions.
excellent post. That is why I come here. I also read the speech.Roe was wrongly decided. There is no right to kill one’s baby in the constitution. It is now clear to me that Kavanaugh will obliterate Roe using the stare dicisis of Washington v. Glucksberg. We must observe precedence!! There it is. “he( Rehnquist) was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition”. Roe was not so “rooted” . Thank you God. We will halt this national sin.
The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It is Federal powers, NOT our rights, that are specifically enumerated.
The problem is that the Federal government is given no authority one way or nother over abortion (which was illegal when the Constitution was written.)
One can take a states-rights position on the matter, following 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."
Or, one can take the view that teh constitution actively prohibits abortion, based on the Fifth and Fourteenth Amendments:
Fifth Amendment (relevant portion):
"No person shall ... be deprived of life, liberty, or property, without due process of law"
Fourteenth Amendment (relevant portion):
"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
So ne can argue that the right to life is specifically protected. But the Ninth Amendment guarantees and protects unenumerated rights. So this is the wrong basis on which to attack Roe v. Wade.
I would like Kavanaugh to state if he felt that:
1. Rehnquist should have been successful in opposing Roe and Casey OR
2. Roe, though wrongly decided, still should have been affirmed by Casey based on stare decisis
That is a critical question.
Senators need to ask that and Kavanaugh needs to give the right answer.
That is so true. Justices had gotten drunk with power.
BUMP for later
His first sentence assessment: He is not wrong.
If you read through the Federalist Papers, and Letters from a Federal Farmer (sometimes known as the "anti-federalists"), you'll see that there was a dialogue going on in the public over whether or not to ratify the Constitution. One of the major arguments of the anti-federalists was, that the act of actually listing out some limited number of rights that were specificially beyond the government's ability to restrict was that it would then leave open the argument that only those rights specified were actually protected. This is the exact argument we're seeing above.
I find the very idea that there is no human right to privacy to be laughable in the extreme, especially when you consider all the other rights that directly affect it that are specifically called out. The 4th and 5th are cited most often in this realm, but even the 3rd (the forgotten amendment) speaks to it directly. How much privacy can one have in a home if you have an agent of the government quartered in it?
I realize that the entire concept of 'unenumerated rights' can be extended to insane extremes, like a 'right' to a TV, or a sex change operation, but the fact is, that just because something wasn't specifically spelled out on vellum doesn't mean we don't retain it because we are human beings.
Take a look at Baker v Carr, decided in 1962.
I think a rather good argument might be made that decision was the point after which the federal judiciary went to h311. As a later reply indicates, perhaps Roe v Wade represents the crest of that wave.
Hysteria \Hys*te"ri*a\, n. [NL.: cf. F. hyst['e]rie. See
Hysteric.] (Med.)
A nervous affection, occurring almost exclusively in women,
in which the emotional and reflex excitability is
exaggerated, and the will power correspondingly diminished,
so that the patient loses control over the emotions, becomes
the victim of imaginary sensations, and often falls into
paroxism or fits.
[1913 Webster]
Note: The chief symptoms are convulsive, tossing movements of
the limbs and head, uncontrollable crying and laughing,
and a choking sensation as if a ball were lodged in the
throat. The affection presents the most varied
symptoms, often simulating those of the gravest
diseases, but generally curable by mental treatment
alone. Hysteric