Constitutional Right to Privacy - Tilted Forum Project Discussion Community

Mojo_PeiPei · 03-28-2006, 08:51 AM

Quote:

Originally Posted by dksuddeth

i beg to differ. 'Privacy' can rightfully be assumed with regards to the fourth amendment - 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. - however, including abortion (or Roe v. Wade) as an inherent right to privacy was a huge stretch of the amendment. I'd even go so far as to say it violated the 9th and 10th amendments.

Creating new law is nothing new to judicial activists anyway. The second amendment has been gutted numerous times via judicial activism with every major gun law thats been written.

You are right DK, where I'm coming from is 'privacy' might be implicit, but it is not 'explicit'. The Justices who ruled on Griswold, were using every amendment under the sun as a sign that it was, if I remember correctly even the 9 & 10 as justifications for it. Was not the best or strongest way to make a case.

The_Jazz · 03-28-2006, 09:33 AM

Quote:

Originally Posted by Mojo_PeiPei

Conservative justices and conservative findings don't implement new laws. Extreme liberal justices do, they impose their will on the country and bypass the constitution and legislative process, i.e. abortion and privacy, neither of which are mentioned anywhere in the constitution, yet are somehow fundamental American constitutional rights.

If you are using "liberal" and "conservative" in the classical sense, you're right. In the political sense, you're using the wrong terms. Conservative judges can be and have been just as activist as liberal justices. Liberals may have made some of the more recent, high-profile activist decisions, but they by no means have a corner on that market.

host · 03-28-2006, 09:37 AM

Quote:

Originally Posted by Mojo_PeiPei

You are right DK, where I'm coming from is 'privacy' might be implicit, but it is not 'explicit'. The Justices who ruled on Griswold, were using every amendment under the sun as a sign that it was, if I remember correctly even the 9 & 10 as justifications for it. Was not the best or strongest way to make a case.

Mojo_PeiPei, I'm hoping that it was just an oversight that I received no response to my questions to you, on March 23, in the following quote box.

If your lack of response was not an oversight, consider that you are repeating your argument after making no effort to answer my questions and without challenging my comments, all in the following, March 23 post:

Quote:

http://www.tfproject.org/tfp/showthr...cy#post2031853
Mojo_PeiPei, it may interest you to learn that the following is contained in the <a href="http://usinfo.state.gov/products/pubs/rightsof/privacy.htm">"Privacy Lesson"</a> that the U.S. State Dept. displays on the web to inform folks from other countries about the matter of "a right to privacy". There are indications that the authors of the web page regard "a right to privacy", particularly related to a right to access to contraceptives and to abortion, without intrusion into these private matters, by the government, as "settled" law.....far from being a product of "creative judicial interpretation", they are the prevailing view of justices of competing politcal affiliation, for more than 115 years, and thus, are no more deserving of your "creative" label, than any other rulings of the SCOTUS, including "Brown v. Board of Ed."

Where else is their an example of such a long series of consistant and progressive SCOTUS rulings, as these rulings related to "privacy", that would qualify for the critical and marginalizing label of "creative judicial interpretation"? Can you provide any examples of a progression of SCOTUS rulings, on one area of the law, in an overlapping time period (late 19th century to early 21st century) that you would exclude from your "creative judicial interpretation"? Do you accept that the SCOTUS has any standing to interpret the constitution, that result in more legitimate interpretation, than it has in the privacy rulings?

Your past comments on this subject:

Quote:

Originally Posted by Mojo_PeiPei

http://www.tfproject.org/tfp/showthr...cy#post1769000
So abortion was legislated by the congress at the behest of the people? Also please show me where the FF and their original intent protect things such as abortion or gay marriage, those have both been issues legislated by the bench. The whole doctrine of separation of church and state is created by the judiciary, it has zero mention in any of the founding documents or the constitution, yet it is worshipped as gospel by liberals and their policy hawks behind the bench. Hell the whole "right to privacy" notion didn't come about until 100 years after the founding of our country, no where is it mentioned in the constitution, however in Griswold v. Conn. all the court needed do was state that it was "implied". You are a few hamburgers short of a value meal if you don't think the judiciary can and doesn't legislate from the bench, and I'm not even limiting it to pissed off conservatives.

Quote:

Originally Posted by Mojo_PeiPei

http://www.tfproject.org/tfp/showthr...cy#post1890664
.......Fundamentally I don't know if Roberts would overturn it. He has stated how he is by and large behind the principle of a right to privacy. The importance of that is, Conservatives maintain there is no such thing as a right to privacy, it is no where mentioned in the constitution (which is true), and it was improperly inferred with the case of Griswold V. COnnecticut. I don't know where that leaves us, maybe Roberts would be more partial to voting on the constitutionality of issues like Partial Birth abortion bans and the ilk, setting new precedents. By and large the man is wicked smart and deeply respected, his reputation isn't that of a staunch conservative more a solid interpretor of the constitution, which I hope is the case.

Quote:

Originally Posted by Mojo_PeiPei

http://www.tfproject.org/tfp/showthr...cy#post2015067
Glad they did it, can't wait until it makes its way up through the courts, at the very least I'm hoping this will put some power back in the hands of the state. I take issue with the stance that people something thing Abortion is an inalienable civil liberty; derived from a very suspect line of reasoning in Griswold V. Conn, the right to privacy. Roe to me is a joke of no legal muster, and what is a perfect example of judicial activism.....

Mojo_PeiPei · 03-28-2006, 09:57 AM

Could you do me a favor Host and reword that, I'm having a tough to deciphering any questions levied.

host · 03-28-2006, 10:21 AM

Quote:

Originally Posted by Mojo_PeiPei

Could you do me a favor Host and reword that, I'm having a tough to deciphering any questions levied.

In this March 23 post:
http://www.tfproject.org/tfp/showthr...cy#post2031853

You Wrote:

Quote:

Originally Posted by Mojo_PeiPei

Sorry to break it to you Spektr, but the Bill of Rights, or the constitution as a whole, in no place mentions any fundamental right to privacy, or for that matter anything on abortion. You find those at the behest of creative judicial interpretation.

My response:
Mojo_PeiPei, it may interest you to learn that the following is contained in the "Privacy Lesson" that the U.S. State Dept. displays on the web to inform folks from other countries about the matter of "a right to privacy". There are indications that the authors of the web page regard "a right to privacy", particularly related to a right to access to contraceptives and to abortion, without intrusion into these private matters, by the government, as "settled" law.....far from being a product of "creative judicial interpretation", they are the prevailing view of justices of competing politcal affiliation, for more than 115 years, and thus, are no more deserving of your "creative" label, than any other rulings of the SCOTUS, including "Brown v. Board of Ed."

Quote:

http://usinfo.state.gov/products/pub...of/privacy.htm
From — C H A P T E R 6 —
Privacy

....Justice Louis D. Brandeis, dissenting in Olmstead v. United States (1928)

Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them on any subject, and although proper, confidential, and privileged, may be overheard. . . .

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the one most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Brandeis considered it irrelevant that the Framers of the Fourth Amendment had not used the word "privacy" specifically, nor had they mentioned wire-tapping. How could they, since telephones had not been invented! What he and others have sought is not the literal meaning of the words, but what the Framers intended — namely, that government should leave people alone. The manner of intrusion did not matter; the fact of it did.

Eventually Brandeis's view prevailed, and, in the 1960s, the Court ruled that wire-tapping did violate a constitutionally protected right of privacy. As Justice Potter Stewart explained, the Fourth Amendment protects people not places. If people have legitimate expectations of privacy, such as in their home, then they may invoke the protection of the Constitution to ensure that privacy.

Nonetheless, in Griswold v. Connecticut (1965) the Court asked the question — Did the people want the state to be involved with intimate private decisions about family planning? The answer was clearly no, because this was a personal matter, a private decision, in which that the state had no business intruding. Justice Douglas, in striking down the state law and upholding the right of the clinic to dispense birth control information, declared that privacy, even though not mentioned directly, nonetheless enjoyed the constitutional protection that Justice Brandeis a generation earlier had proclaimed....

...Following the decision in Griswold that information about birth control, and the decision whether to use it, constituted a private matter, the Court in a case involving a woman's right to have an abortion, a few years later extended the right of privacy......

...Justice Sandra Day O'Connor, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. . . . At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State....

...Chief Justice William H. Rehnquist, in Washington v. Glucksberg (1997)

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the right to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.....

My Questions:

Where else is their an example of such a long series of consistant and progressive SCOTUS rulings, as these rulings related to "privacy", that would qualify for the critical and marginalizing label of "creative judicial interpretation"? Can you provide any examples of a progression of SCOTUS rulings, on one area of the law, in an overlapping time period (late 19th century to early 21st century) that you would exclude from your "creative judicial interpretation"? Do you accept that the SCOTUS has any standing to interpret the constitution, that result in more legitimate interpretation, than it has in the privacy rulings?

flstf · 03-28-2006, 12:57 PM

host

I agree that the courts seem to have widely interpreted the Constitution and read between the lines to sometimes allow a right to privacy. I am not a lawyer but it seems to me that we would be better served if we would ammend the constitution and add a clear right to privacy taking into consideration our modern world.

For instance Rehnquist stated that the Due Process Clause includes:

the right to marry:
This is not a reality for many gays or polygamists

the right to bodily integrity:
This is just not true, we can only ingest substances approved by the government and suicide is illegal almost everywhere.

the right to abortion:
What's with all the 3 month, 6 month rules, etc.. Either the fetus is protected human life or not.

When I lived in Seattle from time to time they would put up DWI roadblocks and stop every 3rd or 4th car for sobriety testing. What happened to our right to traverse without being searched. There seem to be many laws upheld that violate our privacy like seatbelt and helmet laws (bikes and motorcycles) and the ultimate privacy violation, they can take your house if the local polititians want to give the land to a Wal-Mart at their price.

I don't disagree with your premise, just wanted to vent a little.

Mojo_PeiPei · 03-28-2006, 06:40 PM

If it counts Host, what he said ^ ^ ^

I still don't really fully understand your question to be honest, the words are not lining up for me. As it goes, I'm not opposed to a right of privacy; it is innate, and as someone who is big on original intent I'm positive the FF would agree it's there. I just take issue with the issues a lot of the times, and having read the decisions of Griswold and Roe, I thought some of the reasoning was a little creative and thus suspect. It has to do with some application and a lot of contradictions, not to mention there is the little issue of states rights for me.

On that note I will never fully side with the courts on all issues, and to say something is decided law is a joke, that is a political tool meant to box people in their thinking so as to appease pundits and demogagues. Historically the courts do not always make the right decision, look at Dred Scott, legally sound, morally abhorrent; akin to say something like abortion. Only took one hundred years before what had been decided law was overturned.

The_Jazz · 03-29-2006, 07:53 AM

OK, here goes - Roe is a decided and confirmed case, the same way that Dred Scott was. There's little to no debate about that. You may disagree with the decision and find it morally abhorent, but it is the governing precendent for quite a few decisions over the last 30 years or so. Could it be creative - certainly. That doesn't change its status.

That said, personally I find it ironic that the far right screams and yells about "activist judges" and how they create law out of nothing, and now they are looking to SCOTUS to be a bunch of activists and overturn Roe on the new SD abortion law. Scalia and Thomas may be a bunch of things, but activist they are not. I admire Scalia for his willingness to be a strict constructionist (Thomas on the other hand is a lot like the bully's toady in "A Christmas Story" who runs off to tell his dad while the bully's getting beaten up by Ralphie). To get Scalia (and Thomas with him) to overturn Roe, someone's going to have to give a pretty compelling reason to do it. I haven't seen anything in this particular case to give any reason to cut back on this particular privacy issue.

03-28-2006, 09:57 AM	#4 (permalink)
Mojo_PeiPei Kiss of Death Location: Perpetual wind and sorrow	Could you do me a favor Host and reword that, I'm having a tough to deciphering any questions levied. __________________ To win a war you must serve no master but your ambition.

03-28-2006, 12:57 PM	#6 (permalink)
flstf Easy Rider Location: Moscow on the Ohio	host I agree that the courts seem to have widely interpreted the Constitution and read between the lines to sometimes allow a right to privacy. I am not a lawyer but it seems to me that we would be better served if we would ammend the constitution and add a clear right to privacy taking into consideration our modern world. For instance Rehnquist stated that the Due Process Clause includes: the right to marry: This is not a reality for many gays or polygamists the right to bodily integrity: This is just not true, we can only ingest substances approved by the government and suicide is illegal almost everywhere. the right to abortion: What's with all the 3 month, 6 month rules, etc.. Either the fetus is protected human life or not. When I lived in Seattle from time to time they would put up DWI roadblocks and stop every 3rd or 4th car for sobriety testing. What happened to our right to traverse without being searched. There seem to be many laws upheld that violate our privacy like seatbelt and helmet laws (bikes and motorcycles) and the ultimate privacy violation, they can take your house if the local polititians want to give the land to a Wal-Mart at their price. I don't disagree with your premise, just wanted to vent a little. Last edited by flstf; 03-28-2006 at 01:07 PM..

03-28-2006, 06:40 PM	#7 (permalink)
Mojo_PeiPei Kiss of Death Location: Perpetual wind and sorrow	If it counts Host, what he said ^ ^ ^ I still don't really fully understand your question to be honest, the words are not lining up for me. As it goes, I'm not opposed to a right of privacy; it is innate, and as someone who is big on original intent I'm positive the FF would agree it's there. I just take issue with the issues a lot of the times, and having read the decisions of Griswold and Roe, I thought some of the reasoning was a little creative and thus suspect. It has to do with some application and a lot of contradictions, not to mention there is the little issue of states rights for me. On that note I will never fully side with the courts on all issues, and to say something is decided law is a joke, that is a political tool meant to box people in their thinking so as to appease pundits and demogagues. Historically the courts do not always make the right decision, look at Dred Scott, legally sound, morally abhorrent; akin to say something like abortion. Only took one hundred years before what had been decided law was overturned. __________________ To win a war you must serve no master but your ambition.

03-29-2006, 07:53 AM	#8 (permalink)
The_Jazz Asshole Administrator Location: Chicago	OK, here goes - Roe is a decided and confirmed case, the same way that Dred Scott was. There's little to no debate about that. You may disagree with the decision and find it morally abhorent, but it is the governing precendent for quite a few decisions over the last 30 years or so. Could it be creative - certainly. That doesn't change its status. That said, personally I find it ironic that the far right screams and yells about "activist judges" and how they create law out of nothing, and now they are looking to SCOTUS to be a bunch of activists and overturn Roe on the new SD abortion law. Scalia and Thomas may be a bunch of things, but activist they are not. I admire Scalia for his willingness to be a strict constructionist (Thomas on the other hand is a lot like the bully's toady in "A Christmas Story" who runs off to tell his dad while the bully's getting beaten up by Ralphie). To get Scalia (and Thomas with him) to overturn Roe, someone's going to have to give a pretty compelling reason to do it. I haven't seen anything in this particular case to give any reason to cut back on this particular privacy issue. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo