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Post By
The Silver Surfer

Member Since: Sat May 17, 2008
In Reply To
The Avenger

Location: New Jersey
Member Since: Thu Dec 02, 2021
Subj: Why Framer's obsession is... a terribel argument.
Posted: Wed May 11, 2022 at 10:35:03 pm EDT (Viewed 120 times)
Reply Subj: Re: Looks like Roe vs Wade is getting overturned
Posted: Sun May 08, 2022 at 07:52:35 am EDT (Viewed 211 times)

Previous Post

    That is not what Roe v. Wade did.

    It did not give the right to have an abortion, it ruled that the right was already in the constitution, under the right to privacy.

Ruling that something is true does not make it true. A ruling can be false, and in this case, it was. The right to privacy isn't there. Here are the two Amendments that have been proposed as asserting that right. The first is this one:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Read that paragraph with an honest eye toward identifying what the Framers had in mind, and you'll conclude they were intent on protecting American citizens from illegal search and seizure on the part of their government. Nothing more. Which makes sense, because the main fear at the time of ratification was federal government overreach.

Here's the second:

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

Where is any mention of anything like privacy? (There is more to say on this Amendment, which I'll get to in a moment, but for now, please just focus on privacy.) What this paragraph does is protect American citizens from (a) being killed, imprisoned, enslaved, or robbed by their state government without due process of law; or (b) from having any of their Constitutional rights violated by their state government; or (c) from being protected differently from anyone else under the laws of their state. What I've labeled "(a)" is not about privacy. What I've labeled "(b)" would only be about privacy if privacy was protected elsewhere in the Constitution, which it isn't. What I've labeled "(c)" would only be about privacy if there were some special group in America which historically had enjoyed a right to privacy, and such was not the case until Roe vs. Wade invented this right on behalf of women - and we can't use Roe vs. Wade to justify Roe vs. Wade.

There is no right to privacy in the Constitution. Not yet. If we want one - and I think we do - we need to put it in there, via the Amendment process.

Now, as I promised, there is more to say on Amendment XIV. It prohibits the states from enslaving their citizens without due process of law. One could argue that preventing a woman from getting an abortion is enslavement. THAT is the right argument to pursue. Not some nonsense about privacy. However, we need to clarify something. The paragraph only prohibits the states from enslaving someone without due process of law. This implies that if the state enacted a law through its legislature that laid out a formal process of when and how a person could be enslaved, Amendment XIV would be satisfied. HOWEVER! The prior Amendment precludes that!


Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this article by appropriate legislation.

So there you go. Argue that prohibiting abortion is enslavement. You could win the debate.

But for some reason, Roe vs. Wade didn't take that approach. Maybe because a reading like that would also prohibit military conscription. If you can't tell a woman she has to have a baby, because that would be involuntary servitude, then you can't tell a man he has to go to war and maybe die, since that, too, would be involuntary servitude. It's that pesky "equal protection of the laws" provision in Amendment IV (see above). Now of course you could distinguish between the two in the Constitution, but you would have to actually write that in. You would have to do an Amendment that clarifies your intent.

And make no mistake: the federal government will not surrender its power to conscript military troops at will.

    The Supreme Court doe not give rights, it determines what rights already exist. They have done that ever since they told us that is what they do in 1803.

And they can err. When they err, they have in effect created a right out of thin air.

Let's actually talk a bout why your framer fetish is not good reasoning.

1. Let's start with an object lesson, something you can connect to on a personal level. Freedom of Speech.

I am a big fan of it, and I don't want my state or city passing laws against it. I am sure you are about to say "The First Amendment AS written prevents that."

Wrong. It says Congress can pass no laws abridging the right. in fact, for much of US history, states could and DID have laws resitting people;s speech, and used tactics to silence critics.

It was eh Supreme Court, at an embarrassing late date, that expanded that right.

I believe the words you used were, " Read that paragraph with an honest eye toward identifying what the Framers had in mind, "

Of course, that is really not enough to really show how bad it is, just to get things going...

2. What you are suggesting is actually the more radical change.

How historical do you ind the Beatles? Star Wars?

The idea of Constitutional originalism was not a concept until 1971. A year after the Beatles final album came out. It get really became a major in politics until the founding of the Federalist Society, in 1982. A full two Star Wars movies had come, and the third in production.

Ironically, this group that claims to be about what the framers intended, are the ones ho ruled a militia was not needed for the second Amendment (which, by the way was a state run militia, into a bunch of assholes in the woods) , despite the word being present in the Amendment. Because, none of this is based on any type of principle, it is just a lie to shape America how people want, regardless of what American's do.

This now idea popped up because of the Warren Court, and its expansion of civil liberties and civil rights.

This was done through a larger ,element...

3. You are invoking the Framers, but you clearly do not understand them. I brought up 1803 for a reason.

American law borrowed heavily from British laws, with some changes. Things like the burden of proof being on the state, the presumption of innocence... HEY! that is not in the Constitution either, by your logic that makes it meaningless as a citizen of the United States...this is not surprising. Most former colonies did this. Aruba's legal system is based on the Dutch for instance... they also include freeing of slaves as part of their Christmas celebration, not relevant, but interesting.

So, most of their legal scholarship was English in origin, that is where the idea of a living document comes from. It is older than the nation.

Marbury v. Madison, and its decision about the court reinforces that It is why it was common place for the Supreme Court to be a way move the country forward, without new amendments.

Lincoln even said, "The Constitution is not a suicide pact."

For most of its history was to interpret the spirit of the Constitution, not the direct meaning. The obsession with literal intent was a byproduct of increased rights most people did not want to lose.

4. The Ninth Amendment. The Ninth Amendment states that just because a right is not listed in the Constitution does not mean you don't have them.

Amendment IV
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That rights not listed are not the governments to give, but belong to the people. Stating what those rights the American people have, that cannot be afringed upon by government rules, is allowed by the ninth Amendment.

They are what we call, "unenumerable rights."

The Tenth Amendment talks about "powers" not rights specifically, for states

Since you s love looking at the exact wording, you will notice it does not specifically say it being through additional amendments.

So even this world of direct interpretation, and you have to go by exactly what the framers said... it is till a bad argument.

They specifically out in an amendment to stop a lack of listing a right in the constitution, from being an excuse for it to not be a right.

If you think Roe v. Wade should be kicked down to the states, that is fine. Just don;t use the Framers as your reasoning. it is a bad argument, and contradicted by history. You clearly have no idea how much that strict interpretations would require retrying cases and how self-defeating the argument is.

I don't love the Supreme Court to a point where I view it a ethereal. There are plenty of rulings I don't like. I think its lack of transparency is kid of disturbing. I think a life time appointment until they decide they are done breeds politicization and could lead serious problems... Brett Kavanaugh is 50,will he have Alzheimer's at 80? Dementia? I don't know, and he likely does not either. It was about getting a judge with certain politics in for a long time.

However, I also don't by into the 20th century mythologizing of the founding fathers... because that is when it started... and what they did to the letter is what matters. It is a cheap ploy, to play off patriotism, to get people to allow themselves to be screwed over, with no protections.

The Framers were people... who died decades ago. to assume they had a naturally superior state from what they written borders on cultist, especially since they clearly had no problem with a court deciding on improvements. The framers even knew that was the case.