> "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."
If your counterargument is "the word privacy isn't in the Constitution", my rejoinder is "neither is 'assault rifle'".
The legal theory on which the right to privacy mostly stands is called "substantive due process", which more or less says the state can't abridge your liberties without trying pretty hard not to. So liberties here can be contraception use, or drug use. Indeed United States v. Oakland Cannabis Buyers' Cooperative had the coop arguing that the Controlled Substances Act "violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments". This has generally (and maybe oddly) been at odds with the Commerce Clause, pretty well typified by Wickard v. Filburn where the Court held that even though Filburn was only growing wheat on his own land for his own use, the US could impose a quota on him because it was regulating the price of wheat federally. This extends interpretation of the Commerce Clause from mere interstate commerce to production and consumption. Here's a good quote:
"Hence, marketing quotas not only embrace all that may be sold without penalty, but also what may be consumed on the premises."
I'm not an expert, but I believe this is the constitutional leg on which the CSA stands: the gov't can regulate what you consume. I'm personally sympathetic to the substantive due process challenge argument, but probably still too young to be on the Supreme Court. Call your senator! :)
You should honestly just read Griswold [0]. It is a strikingly conservative opinion if, for example, you think privacy is also about "the government has to show a compelling governmental interest to regulate firearms". Here are some gems:
"The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights."
"In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the 'freedom to associate and privacy in one's associations,' noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid 'as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association.' Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion."
"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"
"In presenting the proposed Amendment, Madison said:
'It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow, by implication, that those rights which were not singled out were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system, but I conceive that it may be guarded against. I have attempted it, as gentlemen may see by turning to the
Page 381 U. S. 490
last clause of the fourth resolution [the Ninth Amendment]."
"Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that 'no language is so copious as to supply words and phrases for every complex idea.' The Federalist, No. 37 (Cooke ed.1961) at 236."
I could go on. I urge you to read it.
Where do you see abortion rights there?
4A is pretty good at this. People have a right against unreasonable searches and seizures without probable cause. While the state's interest is implicit here, it's obviously law enforcement. This balances the state's interest in enforcing laws with the individual right against unreasonable searches and seizures.
In Griswold, the Court couldn't justify the state's interest in enforcing anti-contraception laws given its necessary invasion of privacy. Other concurrences found the right to privacy in other Amendments (the 9th and the 14th), but regardless of where you look, all of these Amendments lay out an individual liberty vs. a state interest.
Courts are faced with the unenviable task of taking a > 200 year old document and applying its precepts to a world that would bewilder its authors. Different philosophies try to do this in different ways; Scalia famously pushed originalism, but even he essentially writes out slavery, Native American disenfranchisement, and the chattel status of women in the 18th century, and other originalists are even less consistent.
Other justices look for the core liberties ineffably and imperfectly silhouetted by the Constitution--a document defining the most free nation ever yet made--in order to keep the flame of liberty burning. What originalists miss about the Constitution was that it was an extremely radical document. If we are to be consistent with the spirit of the US at its founding, we have to preserve that dedication to liberty and human rights.
Should what was once the beacon of liberty be tethered to what liberty meant 250 years ago? Is that a fitting destiny? Would Madison or Jefferson be proud of such an outcome?
I am no legal scholar by any means, but wasn't Scalia's argument that if the people don't like the social contract (i.e. the constitution), the people should change it via amendments vs having judges change it? I think he would say he did not "essentially writes out slavery..." but rather the 13th, the 19th amendments etc. wrote those out of the constitution.
> if the people don't like the social contract (i.e. the constitution), the people should change it via amendments vs having judges change it.
This only makes sense when you dovetail it with originalism. The Bill of Rights isn't supposed to grow infinitely. Madison didn't even want it (if you're into appeal to authority to Founders). But when you make the dual arguments of:
- the Constitution only means what it literally says, according to its time period
- the only way to expand interpretation is to literally change it with Amendments
you completely ignore the 9th and 10th Amendments.
Originalism is largely a smoke-screen to roll back rights. Dobbs is a great example of this, it heavily relies on "eminent common-law authorities" (only eminent as the result of conservative opinions pushing them into the catalog):
"We begin with the common law, under which abortion was a crime at least after “quickening”—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy."
Concluding:
"The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions."
Well, the problem with the originalist take on this is: women. couldn't. vote. End of debate! Haha.
It's probably also worth saying our understanding of medicine, conception, and pregnancy was pretty rudimentary back then. Why in God's name would we look back to that time period for wisdom on this?
Well, it's because in those days "it was a crime". Pretty convenient.
> I think he would say he did not "essentially writes out slavery..." but rather the 13th, the 19th amendments etc. wrote those out of the constitution.
He doesn't incorporate this into his analysis though. Here's what he writes in Heller regarding "Right of the People" in 2A (he quotes a Rehnquist opinion he concurred with to start):
"‘"[T]he people" seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.'
This contrasts markedly with the phrase 'the militia' in the prefatory clause. As we will describe below, the 'militia' in colonial America consisted of a subset of 'the people'—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as 'the people.'"
His argument is that "the people" means "everyone", and that "the militia" only meant "male, able bodied, and within a certain age range". But "the people" actually only meant white, land-owning men; it excluded women, free Black Americans (largely denied the franchise), and Native Americans.
I think you would probably argue that, OK sure 1789 wasn't wonderful if you weren't a white guy, but we can extrapolate, now that the franchise and civil rights have been extended and incorporated to the States, that "the people" means everyone.
But this is exactly the opposite of what Scalia's arguing. He's saying because "the people" meant everyone, we must understand 2A as applying to everyone. In doing so, he ignores that 2A allowed white men to be armed, but did not allow women, free Black Americans or Native Americans to be armed. "The people" absolutely did not mean everyone, and the Founders were well aware.
In short, he ignores the fundamentally oppressive construction of the Constitution when it was written, and substitutes an imaginary regime where all enjoyed the right to bear arms. It was never so, and hearkening back to such a non-existent time is a daydream.
Such is the problem with originalism. It idealizes men and a time period that were far from ideal. Looking to this period for wisdom inevitably starts to strip rights away from marginalized groups. And that's what we're seeing here.
By what power does the government enforce the seizure of a person's reproductive system and require it to be used to breed another life?
Why use this sort of rhetoric? The legal backing of Roe v. Wade wasn't about that at all.
- Javelin missile launchers
- aerosolized bioagents
- jet fighters
- land mines
but not sniper rifles.
Again, if you're going to extrapolate what "arms" meant in the late 18th century, you have some choices:
- personal arms of the day (muskets, cannons, bayonets)
- personal arms of the current day (missile launchers [0])
- weirdo arms of the current day (drones, gases and bioagents, dirty bombs, white phosphorous)
Originalism isn't helpful to us here, it turns out.
[0]: https://www.militaryfactory.com/smallarms/rocket-launchers.p...
Can you buy Carl Gustaf 8.4 cm recoilless rifle? M114 155 mm howitzer? Mortars? They are all firearms.
You want to disarm yourself in light of that news?
They've been banned since 1986, since "assault rifles" are full auto. Presumably you mean "assault weapon" which is fuzzy media-talk for scary weapon.
False.
They didn’t because the argument you are repeating is wrong, as well as made in bad faith to undermine obviously correct legal analysis.
You are a victim of propaganda and it makes me sad.
For example, your second sentence here would have been fine on its own, or as the nucleus of a more thoughtful comment. The other sentences are the ones that break the guidelines. I understand that on a fraught topic like this, it can be next to impossible not to write such things. But then one should edit them out. That's what I do, or try to.
Edit: it looks like your comment history contains a fair bit of ideological battle. Please make sure you're not using HN primarily for that, because that's the line at which we ban accounts (regardless of which ideology is being battled, or battled for).
https://hn.algolia.com/?sort=byDate&dateRange=all&type=comme...