Justice Thomas is getting to the crux of Roe v. Wade's fallacy. There is no such constitutional right. You can't find any language in the Constitution to support it.
Anyone who has read the transcript and pleadings of Roe v. Wade comes away dumbfounded that this new constitutional right was created by the Court. Listening to the recordings of the case is even more insane. It was the worst set of arguments - by both sides - that I've ever heard. In the absence of competent lawyering, the Court created its own new constitutional right out of thin air.
Thomas is saying the important stuff out loud and there are enough Justices on the Court who should care about such things. Praying hard that we can put an end to this horrific crime.
The enumeration of rights in the Constitution is not manifold, hence the 9th amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The line of argumentation above leads to the Constitution becoming a bestower of rights, however its true roll is a protector of certain rights. Certain rights are so important that the framers decided to enumerate their protection, others thought enumeration would lead exactly to this line of argument... if it's not enumerated, it's not a right. I think Thomas stating that "liberty" may be the right in question is where the 9th amendment is leaning. (I'm actually surprised he asked the question the way he did. I think maybe he just wanted to know what the lawyer would say).
It's not the argument we should want to make anyway. The argument is simple: is the fetus a living human being and when do you count it? The lawyer is arguing 15 weeks is too early, and viability is the cut off. Most pro-lifers argue conception is a good cut off, while liberals argue birth is a good one. The court had to declare Blacks to be human beings worthy of human rights at some point. It's done the same for disabled persons. It completely has the authority to declare a human gamete a human life with human rights.
Yes! And all of our natural rights extend to all life, including the unborn child alive in the womb. Therefor any argument a pregnant woman makes about her life, her body, is naturally the same argument for the unborn child. The only difference is, the unborn can't argue their decision to live when the woman argues for it to die. Therefor, it is up to society to try and protect the weak, the innocent, and the vulnerable from being killed.
Roe v. Wade is ripe for a Constitutional challenge for multiple reasons.
But, chief among my concerns is that is is bad Constitutional Law. The reasoning is completely flawed.
Read the transcript, and the decision. There is no mention of the fetus. It is written strictly from the POV the mother's right to terminate. This right was created - out of thin air - under the 4th amendment right to privacy (and guaranteed by the 14A). IIRC, the Court reasoned that a "medical procedure was a private matter, and the 4A provides a right to privacy, so abortion is protected under the 4A."
With that logic, you could argue that a vaccine is a private matter - and your getting one, or not getting one, is protected under the same auspices. But, I digress...
Another problem with Roe v. Wade is the time in which it was written. Remember the era: it was a time of little/no birth control and condoms were either by prescription or banned. In this atmosphere, I could see a legal argument for needing abortion as a means for contraception - even though I do not agree with it.
Today, you can trip and fall over the amount of contraceptive devices and pills we have at our disposal. Everything is on demand - and nothing is withheld. Given that, you likely became pregnant because you were incredibly careless or you intended to get pregnant. (Side note: Never indulge people who come to you with "What about rape?!" because that is emotion driven nonsense that is used to blur the issue and win moral superiority. The amount of rapes that lead to pregnancies is exceedingly low. It shouldn't be used as one of the primary justifications for abortion.)
So, you had every pill and device available to you (including a morning after pill) and you somehow got around to wanting an abortion 3+ months into your pregnancy. You treated "your bodily autonomy and right to choose" as you would cleaning out your gutters. You kept putting it off, and didn't get around to it until it was too late. You were inept, incompetent, and completely reckless. Society doesn't have to sacrifice it's morals and values to appease people who care very little for their bodies and the consequences of their actions.
Lastly: the viability of the fetus is a major concern. In the 1970s, there was likely little done to show the viability of a fetus at Day X in the pregnancy. Today, we have untold amounts of data showing the viability of a fetus at very early stages of the pregnancy. If a fetus is viable outside the womb, then that fetus is a life which must be afforded rights.
I don't think there are constitutional rights. We have natural rights. The constitution sets forth a set of protections of those natural rights. At least that's the way I understand it. And I certainly hope that's the correct view. We don't want the government granting us rights as that means they can take them away.
That is indeed the correct way to say it. We have rights as a matter of natural law. The Bill of Rights just recognizes some which the US government cannot trample upon.
I think that's correct. And the term I've seen used is codified. So the second amendment codifies the right to bear arms. This doesn't mean the second amendment gives us the right to bear arms. That right is a natural right. It just mentions that right specifically (codifies) when pointing out the "protection" the second amendment is supposed to provide.
...the right to bear arms must not be infringed...
So the second amendment protection is about not infringing on our natural right to bear arms. If you look at the first amendment you'll notice the same type of language. It doesn't say we have the right to free speech, it says something like "... congress shall pass no law which abridges the right to free speech or assembly...". Probably didn't get that one quite right but hopefully close enough.
I also find it a bit interesting the terms they decided on back them. Notice they say "the right to bear arms" not "the right to arms". One might be able to argue that if the second amendment said "the right to arms" then that would mean the government (ie tax payers) would be responsible to arm any citizen that didn't have the means to arm themself.
A ways back, when Charlie Rangel when in congress, he was working on some law "to recognize a person's right to a home". This got me very worried as I assume the dems were trying to have the tax payers provide homes for people.
Justice Thomas is getting to the crux of Roe v. Wade's fallacy. There is no such constitutional right. You can't find any language in the Constitution to support it.
Anyone who has read the transcript and pleadings of Roe v. Wade comes away dumbfounded that this new constitutional right was created by the Court. Listening to the recordings of the case is even more insane. It was the worst set of arguments - by both sides - that I've ever heard. In the absence of competent lawyering, the Court created its own new constitutional right out of thin air.
Thomas is saying the important stuff out loud and there are enough Justices on the Court who should care about such things. Praying hard that we can put an end to this horrific crime.
The enumeration of rights in the Constitution is not manifold, hence the 9th amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The line of argumentation above leads to the Constitution becoming a bestower of rights, however its true roll is a protector of certain rights. Certain rights are so important that the framers decided to enumerate their protection, others thought enumeration would lead exactly to this line of argument... if it's not enumerated, it's not a right. I think Thomas stating that "liberty" may be the right in question is where the 9th amendment is leaning. (I'm actually surprised he asked the question the way he did. I think maybe he just wanted to know what the lawyer would say).
It's not the argument we should want to make anyway. The argument is simple: is the fetus a living human being and when do you count it? The lawyer is arguing 15 weeks is too early, and viability is the cut off. Most pro-lifers argue conception is a good cut off, while liberals argue birth is a good one. The court had to declare Blacks to be human beings worthy of human rights at some point. It's done the same for disabled persons. It completely has the authority to declare a human gamete a human life with human rights.
Yes! And all of our natural rights extend to all life, including the unborn child alive in the womb. Therefor any argument a pregnant woman makes about her life, her body, is naturally the same argument for the unborn child. The only difference is, the unborn can't argue their decision to live when the woman argues for it to die. Therefor, it is up to society to try and protect the weak, the innocent, and the vulnerable from being killed.
Roe v. Wade is ripe for a Constitutional challenge for multiple reasons. But, chief among my concerns is that is is bad Constitutional Law. The reasoning is completely flawed.
Read the transcript, and the decision. There is no mention of the fetus. It is written strictly from the POV the mother's right to terminate. This right was created - out of thin air - under the 4th amendment right to privacy (and guaranteed by the 14A). IIRC, the Court reasoned that a "medical procedure was a private matter, and the 4A provides a right to privacy, so abortion is protected under the 4A."
With that logic, you could argue that a vaccine is a private matter - and your getting one, or not getting one, is protected under the same auspices. But, I digress...
Another problem with Roe v. Wade is the time in which it was written. Remember the era: it was a time of little/no birth control and condoms were either by prescription or banned. In this atmosphere, I could see a legal argument for needing abortion as a means for contraception - even though I do not agree with it.
Today, you can trip and fall over the amount of contraceptive devices and pills we have at our disposal. Everything is on demand - and nothing is withheld. Given that, you likely became pregnant because you were incredibly careless or you intended to get pregnant. (Side note: Never indulge people who come to you with "What about rape?!" because that is emotion driven nonsense that is used to blur the issue and win moral superiority. The amount of rapes that lead to pregnancies is exceedingly low. It shouldn't be used as one of the primary justifications for abortion.)
So, you had every pill and device available to you (including a morning after pill) and you somehow got around to wanting an abortion 3+ months into your pregnancy. You treated "your bodily autonomy and right to choose" as you would cleaning out your gutters. You kept putting it off, and didn't get around to it until it was too late. You were inept, incompetent, and completely reckless. Society doesn't have to sacrifice it's morals and values to appease people who care very little for their bodies and the consequences of their actions.
Lastly: the viability of the fetus is a major concern. In the 1970s, there was likely little done to show the viability of a fetus at Day X in the pregnancy. Today, we have untold amounts of data showing the viability of a fetus at very early stages of the pregnancy. If a fetus is viable outside the womb, then that fetus is a life which must be afforded rights.
Very good post, thanks.
I don't think there are constitutional rights. We have natural rights. The constitution sets forth a set of protections of those natural rights. At least that's the way I understand it. And I certainly hope that's the correct view. We don't want the government granting us rights as that means they can take them away.
That is indeed the correct way to say it. We have rights as a matter of natural law. The Bill of Rights just recognizes some which the US government cannot trample upon.
I think that's correct. And the term I've seen used is codified. So the second amendment codifies the right to bear arms. This doesn't mean the second amendment gives us the right to bear arms. That right is a natural right. It just mentions that right specifically (codifies) when pointing out the "protection" the second amendment is supposed to provide.
So the second amendment protection is about not infringing on our natural right to bear arms. If you look at the first amendment you'll notice the same type of language. It doesn't say we have the right to free speech, it says something like "... congress shall pass no law which abridges the right to free speech or assembly...". Probably didn't get that one quite right but hopefully close enough.
I also find it a bit interesting the terms they decided on back them. Notice they say "the right to bear arms" not "the right to arms". One might be able to argue that if the second amendment said "the right to arms" then that would mean the government (ie tax payers) would be responsible to arm any citizen that didn't have the means to arm themself.
A ways back, when Charlie Rangel when in congress, he was working on some law "to recognize a person's right to a home". This got me very worried as I assume the dems were trying to have the tax payers provide homes for people.