The Professor
Diamond Member
- Mar 4, 2011
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So the delegates to the constitutional convention had not idea what they were writing?The Constitution is what the Supreme Court say it is.
The state ratifying conventions had no idea what they were ratifying?
Regent was right. When it comes to the Constitution of the United States, the document means exactly what the United States Supreme Court (SCOTUS) says it means. What you or I or anyone else thinks it means is irrelevant. The founding fathers may have written the words, but SCOTUS is tasked with interpreting the document, and there is no appeal from their decision. In other words, their case law IS the Constitution
There are many examples, but I will give you just one for now. There is nothing in the Constitution that remotely addresses the issue of abortion. So, how could a woman have a Constitutional right to an abortion when the Document is silent regarding the matter? The answer is Roe versus Wade … case law.
It gets even stranger. The case law which gave a woman the right to an abortion was based upon a right of privacy which was also created by case law! There is no mention of a right to privacy in the Constitution, and the SCOTUS said as much. The Court basically opined that although there was no language specific to a right to privacy, there was “penumbra” effect” of the articulated rights which included an unspoken right of privacy. The SCOTUS created a right to privacy even though no such provision was articulated in the Constitution. The following are the relevant portions of GRISWOLD v. CONNECTICUT – 381 U.S. 470 (decided June 7, 1965).
“I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, I add these words to emphasize the relevance of that Amendment to the Court's holding” (highlights my own).
“Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family - a relation as old and as fundamental as our entire civilization -surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution” (Highlights my own).
“The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against 'unreasonable searches and seizures.'" (Justices Black's dissenting opinion Joined by Justice Stewart, highlights my own).
Conclusion: It was not what the founding fathers wrote that granted women the right to abortion; rather it was the decision of the SCOTUS. Did the framers of the Constitution believe in a constitutional right to abortion as opposed to leaving the issue to the individual states to resolve? I don't have a clue. Nor does anyone else.