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Thread: Dershowitz: Texas abortion bounty approach could be adopted in states that want to ba

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    Quote Originally Posted by RMNIXON View Post
    The whole business about not quartering soldiers is a good case in point. The basic Constitutional rights provisions as written were quite specific to abuses by the British Army. That also including searching homes, farms, and persons without proper cause or warrant. Thus a 4th Amendment right to be secure in ones person, home, and papers.

    That is rather far removed from a right to kill an unborn child as privacy.
    It stretches sensibility to the breaking point.
    Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
    Louis Brandeis,Dissenting, Olmstead v. United States, 277 U.S. 438, 479 (1928)

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    Quote Originally Posted by Peter1469 View Post
    My point is that when Justices use the living Constitution Doctrine they create messes later, like this one.
    Bump to support the above several threads.
    ΜOΛΩΝ ΛΑΒΕ


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    Quote Originally Posted by Chris View Post
    It's typical liberal quackery. Somehow from the right not to quarter soldiers, the courts found in penumbras a right to privacy, and that was applied to married couples using condoms. Then as liberals are wont to do, they go to the dictionary and, of of all context, return with a transformation of meaning such that taking the life of the unborn is protected by the invented right to privacy. It did the same with the 14th which plainly says "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."
    And the 9th Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    What about the unenumerated rights retained by the people? Don't they count? The right to privacy wasn't just invented in 1973. The Hippocratic Oath dates back to between the 5th and 3rd centuries BC and it contains promise not to violate a patient's privacy. From the original oath:

    "And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets."Hippocratic Oath - Wikipedia

    In 1928 Justice Louis Brandeis defined privacy as "the right to be left alone"

    "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. … They knew that only a part of the pain, pleasure and satisfaction 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 left alone—the most comprehensive of rights and the right most valued by civilized men."
    Defining Privacy - Markkula Center for Applied Ethics (scu.edu)
    "The difference between what we do and what we are capable of doing would suffice to solve most of the world’s problems.”
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    Quote Originally Posted by Dr. Who View Post
    And the 9th Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    What about the unenumerated rights retained by the people? Don't they count? The right to privacy wasn't just invented in 1973. The Hippocratic Oath dates back to between the 5th and 3rd centuries BC and it contains promise not to violate a patient's privacy. From the original oath:

    "And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets."Hippocratic Oath - Wikipedia

    In 1928 Justice Louis Brandeis defined privacy as "the right to be left alone"

    "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. … They knew that only a part of the pain, pleasure and satisfaction 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 left alone—the most comprehensive of rights and the right most valued by civilized men."
    Defining Privacy - Markkula Center for Applied Ethics (scu.edu)

    You can't just pull rights out of the 9th in order to create them.

    Hippocratic Oath as base says do no harm: "Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free." Remember, from conception, it's a living human being.

    What about protections for the unborn? Remember, we are all created equal with rights.

    So far you're not doing such a good job coming up with a reasonable argument.
    Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
    Louis Brandeis,Dissenting, Olmstead v. United States, 277 U.S. 438, 479 (1928)

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    Quote Originally Posted by Chris View Post
    You can't just pull rights out of the 9th in order to create them.

    Hippocratic Oath as base says do no harm: "Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free." Remember, from conception, it's a living human being.

    What about protections for the unborn? Remember, we are all created equal with rights.

    So far you're not doing such a good job coming up with a reasonable argument.
    Your argument is predicated on a belief that rights begin at conception. That is not a universally held belief - not even a majority belief.
    "The difference between what we do and what we are capable of doing would suffice to solve most of the world’s problems.”
    Mahatma Gandhi

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    Quote Originally Posted by Dr. Who View Post
    Your argument is predicated on a belief that rights begin at conception. That is not a universally held belief - not even a majority belief.
    Life begins at conception. Per the Declaration, we're all created with equal rights. You can't ignore that. What you're arguing is personhood, which is subjective and arbitrary. All of which is beside the point in determining a constitutional right.

    The point remains, in order for a right to abortion to exist, you must show it derives from penumbral privacy and also show that privacy derives reasonably from some other right, moreover, that right must appear in the Constitutional for it to be constitutional. The 9th refers to no particular right.

    Try again.
    Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
    Louis Brandeis,Dissenting, Olmstead v. United States, 277 U.S. 438, 479 (1928)

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    Quote Originally Posted by Chris View Post
    Life begins at conception. Per the Declaration, we're all created with equal rights. You can't ignore that. What you're arguing is personhood, which is subjective and arbitrary. All of which is beside the point in determining a constitutional right.

    The point remains, in order for a right to abortion to exist, you must show it derives from penumbral privacy and also show that privacy derives reasonably from some other right, moreover, that right must appear in the Constitutional for it to be constitutional. The 9th refers to no particular right.

    Try again.
    The Constitution per the Ninth A (and James Madison) made a point of stating that it was not enumerating all of the rights, so you cannot only protect enumerated rights and pretend that those that were unenumerated and retained by the people don't exist.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Privacy rights have existed in some form or another for all of human history.
    "The difference between what we do and what we are capable of doing would suffice to solve most of the world’s problems.”
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    Quote Originally Posted by Dr. Who View Post
    The Constitution per the Ninth A (and James Madison) made a point of stating that it was not enumerating all of the rights, so you cannot only protect enumerated rights and pretend that those that were unenumerated and retained by the people don't exist.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Privacy rights have existed in some form or another for all of human history.
    I understand what the 9th says. What it doesn't do it mention any particular right from which to derive a right to privacy or abortion. Nothing from nothing is nothing. In order for privacy and/or abortion to be a constitutional right you must show that it derives from another protected right that has been incorporated.

    Maybe though if you ignore this requirement and just keep repeating yourself it will become true. Or click your heels three times!
    Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
    Louis Brandeis,Dissenting, Olmstead v. United States, 277 U.S. 438, 479 (1928)

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    Dr Who is actually doing no better than SCOTUS.

    He is Thomas explaining in his dissent in JUNE MEDICAL SERVICES L. L. C. ET AL. v. RUSSO, INTERIM SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS @ https://www.supremecourt.gov/opinion...1323_c07d.pdf:

    The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut, 381 U. S. 479 (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” Id., at 486. The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Id., at 484. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” Ibid. This reasoning is as mystifying as it is baseless.
    Let's look at Griswold v. Connecticut, 381 U.S. 479 (1965) @ https://supreme.justia.com/cases/federal/us/381/479/. The explanation there is similar to Who's:

    The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, and may be forgotten by others, but, since 1791, it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
    Wait a minute. There's no rational argument there. What Douglas has done is he has declared marriage a fundamental right and that fundamental rights are contained in the 9th amendment. These are declarations, not arguments.


    The other question to ask is even if you accept marriage as a fundamental right contained in the penumbras of the 9th, how does it follow on that that abortion is as well?

    "This reasoning is as mystifying as it is baseless."
    Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
    Louis Brandeis,Dissenting, Olmstead v. United States, 277 U.S. 438, 479 (1928)

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    Quote Originally Posted by Chris View Post
    I understand what the 9th says. What it doesn't do it mention any particular right from which to derive a right to privacy or abortion. Nothing from nothing is nothing. In order for privacy and/or abortion to be a constitutional right you must show that it derives from another protected right that has been incorporated.

    Maybe though if you ignore this requirement and just keep repeating yourself it will become true. Or click your heels three times!
    Where does the Constitution state that the unenumerated rights are derivative of the enumerated rights? Where is your constitutional authority for that statement?

    Per Justice Goldberg in in Griswold v. Connecticut - U.S. Supreme Court; 381 U.S. 479 - 1965:

    “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.” Amendment IX. UNENUMERATED RIGHTS | U.S. Constitution Annotated | US Law | LII / Legal Information Institute (cornell.edu)

    The requirement of which you speak is nonexistent.
    "The difference between what we do and what we are capable of doing would suffice to solve most of the world’s problems.”
    Mahatma Gandhi

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