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The Semantics of Constitutionality

DGS49

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There is a major kerfuffle today about the "right" of pregnant women to end their pregnancy. The state of Texas has placed a rather severe limitation on abortions. Indeed, they have prohibited abortions after the heartbeat of the fetus can be detected. This standard goes beyond the standard of Roe v. Wade (if you examine the core of the decision), which is to say, it is more restrictive than RvW proclaimed that a State could be. Under RvW, the States could only regulate (prohibit) abortions after the fetus had arguably achieved "viability," which the decision states is the third trimester of pregnancy. Texas' prohibition is far earlier than viability.

So wimmin's rights activists are now loudly claiming that the Texas law and standard violates women's CONSTITUTIONAL RIGHTS.

Balderdash.

A "Constitutional right" is a right that is guaranteed by THE CONSTITUTION. The right to keep and bear arms are Constitutional Rights. The right to be free from unreasonable searches and seizures is a Constitutional right. Free speech is a Constitutional right.

The "right" to obtain (or perform) an abortion is a judge-made right that is claimed to be founded on the elusive "right of privacy" that is also found nowhere in the Constitution.

So I don't deny that that "right" exists under the current version of "Constitutional law," but it is not a "Constitutional" right. It does not originate, nor is it based on anything, in the Constitution.

SImilarly, there is no "Constitutional right" to marry someone of the same gender. There is no Constitutional right to engage in sodomy, homosexual or otherwise. These rights do exist, but they have no connection to the Constitution. They are entirely made-up "constitutional" law - the creation of activist USSC justices.

I'm not sure what term should be used, but I find it highly objectionable to call these rights "Constitutional rights." They have nothing to do with the Constitution.
 

Abatis

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A "Constitutional right" is a right that is guaranteed by THE CONSTITUTION. The right to keep and bear arms are Constitutional Rights. The right to be free from unreasonable searches and seizures is a Constitutional right. Free speech is a Constitutional right.

The "right" to obtain (or perform) an abortion is a judge-made right that is claimed to be founded on the elusive "right of privacy" that is also found nowhere in the Constitution.

The "where's that right in the Constitution?" argument is deeply flawed. It ignores / dismisses the most foundational intermingled principles of the Constitution, that of conferred powers and retained rights.

All power originates from the people. Government only has those powers granted to it in the Constitution and every power not conferred by the people, is retained by them either as rights, (exceptions of powers not granted), or to be conferred by them to the states through state constitutions, for states to exercise over the issues and affairs and perform the duties the people assign to the states.

That foundational principle was a primary argument of the Federalists in opposition to adding a bill of rights to the federal Constitution. They argued that it was absurd and dangerous to declare that things shall not be done, when no power was ever granted to impact those issues and affairs.

The Federalists warned that in the future, people might think that the Bill of Rights was the complete list of the rights people possessed and that anything left out was intended to be placed in the care and control of government.

Madison was a Federalist, vehemently opposed to a bill of rights who eventually was forced to support the addition of a bill of rights. Ironically he was tasked with editing the proposed amendments from the states, composing provisions all could agree upon and arguing for their adoption.

He did add two proposals himself as rules of construction and interpretation that were recognition and codification of Federalist argument against a bill of rights, they became the 9th and 10th Amendments.

The 9th Amendment reminds us that there are a myriad of rights that the people possess that were not included in the Bill of Rights but remain constitutionally secured rights, because the government must be held powerless to move against those interests.


SImilarly, there is no "Constitutional right" to marry someone of the same gender. There is no Constitutional right to engage in sodomy, homosexual or otherwise. These rights do exist, but they have no connection to the Constitution. They are entirely made-up "constitutional" law - the creation of activist USSC justices.

I'm not sure what term should be used, but I find it highly objectionable to call these rights "Constitutional rights." They have nothing to do with the Constitution.

So here comes more information than you want but it is information you need . . .

I understand your belief that the Court made-up these rights and I do agree that the theory of "penumbral rights" is a clumsy work-around, a contrivance to allow the Court to recognize and protect rights not mentioned in the Constitution. That sense of it being an artifice allows many attacks on the process and of the rights that were "invented" by the theory's application.

Constitutionally, itis argued that work around was made necessary because of an earlier, horrible decision by the Court that the Court is reluctant to revisit. That decision, The Slaughter-House Cases (1873), handed down a couple years after the enactment of the 14th Amendment, worked to invalidate the 14th Amendment's "privileges or immunities" clause. That essentially killed the principle of "Liberty", leaving only "due process" and "equal protection" as the legal mechanisms to decide that a challenged state law violated a citizen's rights.

This frustrated the application of the 14th Amendment's protection because "due process" & "equal protection" demand a methodical, case-by-case, issue-by-issue airing of challenges to law and that begat anoher invention of the Court, "selective incorporation", a piecemeal, clause by clause application of the Bill of Rights that is still going on 100 years later, with the 2nd Amendment finally incorporated in 2010.

So let's advance to the 1960's and the Warren led SCOTUS desire to advance civil rights in a wide, broad manner but "due process" and "equal rpotection" not being conducive for that. The Court's solution was the "penumbral rights theory". This allowed them to reinvigorate the overall principle of the 14th Amendment that the Court essentially killed in 1873, that the Bill of Rights embodies a rational continuum of liberty . . . That those specific proclamations of rights stand as examples of many other Liberty interests where government's power is impotent. The Warren Court said that those specific examples (Amendments 1-8) have "penumbras" and "emanations" and innumerable liberty interests reside within that principle and can be recognized and protected without requiring specific laws being challenged and the Court speaking on every little disagreement.

The Court said that recognizing a panoply of unenumerated rights means that citizens can enjoy a life free from arbitrary impositions and purposeless restraints by government and includes the protection of those rights, such as privacy (and later, its derivative rights like abortion and LGBT rights). That protection demands the rejection of the state justifications for laws binding citizens, when no power was ever granted giving government power in those affairs.

So essentially you are looking at it backwards; the principle isn't that a right isn't listed, it's that a power over that interest (of one's own body and autonomy) isn't granted.

.
 

danielpalos

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We need better metadata from women to know they are not pregnant.

A "Theranos" style of objective may be the answer to getting testing capability out to more women.

We can ask some engineering majors to help out.
 
OP
DGS49

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I am all on board with unenumerated rights.

But that ignores the personhood of the fetus. Which is not addressed in the Constitution.

Judge-made law. Not "Constitutional."
 

Prof.Lunaphiles

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I'm not sure what term should be used, but I find it highly objectionable to call these rights "Constitutional rights." They have nothing to do with the Constitution.
It is a category error mixed with some other argument fallacy.
 

Colin norris

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There is a major kerfuffle today about the "right" of pregnant women to end their pregnancy. The state of Texas has placed a rather severe limitation on abortions. Indeed, they have prohibited abortions after the heartbeat of the fetus can be detected. This standard goes beyond the standard of Roe v. Wade (if you examine the core of the decision), which is to say, it is more restrictive than RvW proclaimed that a State could be. Under RvW, the States could only regulate (prohibit) abortions after the fetus had arguably achieved "viability," which the decision states is the third trimester of pregnancy. Texas' prohibition is far earlier than viability.

So wimmin's rights activists are now loudly claiming that the Texas law and standard violates women's CONSTITUTIONAL RIGHTS.

Balderdash.

A "Constitutional right" is a right that is guaranteed by THE CONSTITUTION. The right to keep and bear arms are Constitutional Rights. The right to be free from unreasonable searches and seizures is a Constitutional right. Free speech is a Constitutional right.

The "right" to obtain (or perform) an abortion is a judge-made right that is claimed to be founded on the elusive "right of privacy" that is also found nowhere in the Constitution.

So I don't deny that that "right" exists under the current version of "Constitutional law," but it is not a "Constitutional" right. It does not originate, nor is it based on anything, in the Constitution.

SImilarly, there is no "Constitutional right" to marry someone of the same gender. There is no Constitutional right to engage in sodomy, homosexual or otherwise. These rights do exist, but they have no connection to the Constitution. They are entirely made-up "constitutional" law - the creation of activist USSC justices.

I'm not sure what term should be used, but I find it highly objectionable to call these rights "Constitutional rights." They have nothing to do with the Constitution.

It's all driven by those godbothering hypocrits on the right.
 
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DGS49

DGS49

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Exhibit A. Justice Soto is horrified that a State would ignore an element of "constitutional" law that is entirely judge-made. Clearly, in her little pea brain, the Constitution's "emanations and penumbras" are to be accorded value equal to that of the text itself.

She is wrong. Her side will lose, despite the ravings and wailings of millions of wimmin whose chances of getting pregnant are approximately zero, due to their uniform repulsiveness.
 

SavannahMann

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There is a major kerfuffle today about the "right" of pregnant women to end their pregnancy. The state of Texas has placed a rather severe limitation on abortions. Indeed, they have prohibited abortions after the heartbeat of the fetus can be detected. This standard goes beyond the standard of Roe v. Wade (if you examine the core of the decision), which is to say, it is more restrictive than RvW proclaimed that a State could be. Under RvW, the States could only regulate (prohibit) abortions after the fetus had arguably achieved "viability," which the decision states is the third trimester of pregnancy. Texas' prohibition is far earlier than viability.

So wimmin's rights activists are now loudly claiming that the Texas law and standard violates women's CONSTITUTIONAL RIGHTS.

Balderdash.

A "Constitutional right" is a right that is guaranteed by THE CONSTITUTION. The right to keep and bear arms are Constitutional Rights. The right to be free from unreasonable searches and seizures is a Constitutional right. Free speech is a Constitutional right.

The "right" to obtain (or perform) an abortion is a judge-made right that is claimed to be founded on the elusive "right of privacy" that is also found nowhere in the Constitution.

So I don't deny that that "right" exists under the current version of "Constitutional law," but it is not a "Constitutional" right. It does not originate, nor is it based on anything, in the Constitution.

SImilarly, there is no "Constitutional right" to marry someone of the same gender. There is no Constitutional right to engage in sodomy, homosexual or otherwise. These rights do exist, but they have no connection to the Constitution. They are entirely made-up "constitutional" law - the creation of activist USSC justices.

I'm not sure what term should be used, but I find it highly objectionable to call these rights "Constitutional rights." They have nothing to do with the Constitution.

Do you have a right to write your opinion online? It isn’t in the Constitution. In fact. Nothing about your writings are protected.

Right to be secure in your person and papers. Your phone calls obviously don’t qualify. Not do your electronic files on your computers. Going strictly by the Constitution.

There is nothing in the Constitution that says we must advise someone of their rights. But we do so.

In fact the First Amendment says Congress shall pass no law. Why is it wrong for a State to pass laws? They aren’t Congress.

Why can’t a State pass a law saying that Anyone who advocates for Donald Trump shall be executed within seven days?

It is not a Constitutional Violation according to you. We would have to ignore the Supreme Court Decisions that say those Individual Rights trump (pardon the pun) States Rights.

Instead we utilize the idea of implied freedoms. So your First Amendment Rights apply everywhere. So no one can lock you up for your freedom of expression.

Or we can go with your plan. Where your rights change from state to state.
 

San Souci

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There is a major kerfuffle today about the "right" of pregnant women to end their pregnancy. The state of Texas has placed a rather severe limitation on abortions. Indeed, they have prohibited abortions after the heartbeat of the fetus can be detected. This standard goes beyond the standard of Roe v. Wade (if you examine the core of the decision), which is to say, it is more restrictive than RvW proclaimed that a State could be. Under RvW, the States could only regulate (prohibit) abortions after the fetus had arguably achieved "viability," which the decision states is the third trimester of pregnancy. Texas' prohibition is far earlier than viability.

So wimmin's rights activists are now loudly claiming that the Texas law and standard violates women's CONSTITUTIONAL RIGHTS.

Balderdash.

A "Constitutional right" is a right that is guaranteed by THE CONSTITUTION. The right to keep and bear arms are Constitutional Rights. The right to be free from unreasonable searches and seizures is a Constitutional right. Free speech is a Constitutional right.

The "right" to obtain (or perform) an abortion is a judge-made right that is claimed to be founded on the elusive "right of privacy" that is also found nowhere in the Constitution.

So I don't deny that that "right" exists under the current version of "Constitutional law," but it is not a "Constitutional" right. It does not originate, nor is it based on anything, in the Constitution.

SImilarly, there is no "Constitutional right" to marry someone of the same gender. There is no Constitutional right to engage in sodomy, homosexual or otherwise. These rights do exist, but they have no connection to the Constitution. They are entirely made-up "constitutional" law - the creation of activist USSC justices.

I'm not sure what term should be used, but I find it highly objectionable to call these rights "Constitutional rights." They have nothing to do with the Constitution.
There is no Abortion in the Constitution. It is MURDER. And the Ghouls at Planned ButcherHood make a profit selling aborted babies for Big Money. Stem Cell Research. Dr. Mengele would be proud.
 

SavannahMann

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There is no Abortion in the Constitution. It is MURDER. And the Ghouls at Planned ButcherHood make a profit selling aborted babies for Big Money. Stem Cell Research. Dr. Mengele would be proud.

There is no email, faxes, or phones in the constitution. Why do the police need a warrant to read or listen in?
 

San Souci

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There is no email, faxes, or phones in the constitution. Why do the police need a warrant to read or listen in?
Basically ,the Constitution is written in Stone. Takes a strong chisel to CHANGE it. That chisel is called The Amendment Procedure. ROE was illegal. Never Legislated.
 

SavannahMann

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Basically ,the Constitution is written in Stone. Takes a strong chisel to CHANGE it. That chisel is called The Amendment Procedure. ROE was illegal. Never Legislated.

So the police need no warrant to listen to phone calls or read electronic mail?

The State can pass a law prohibiting anyone from advocating for Trump. The First Amendment says Congress shall pass no law. If California makes it a death penalty offense to even speak the name of Trump that is Constitutional isn’t it?
 

San Souci

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So the police need no warrant to listen to phone calls or read electronic mail?

The State can pass a law prohibiting anyone from advocating for Trump. The First Amendment says Congress shall pass no law. If California makes it a death penalty offense to even speak the name of Trump that is Constitutional isn’t it?
SCOTUS has murdered 60 Million Babies.
 

SavannahMann

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SCOTUS has murdered 60 Million Babies.

The premise of your reply is that the Constitution is written in stone. Decisions and rights from Supreme Court Decisions are invalid. Why not answer my question? Or do you believe the Constitution is written in stone for a single issue only?
 

San Souci

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The premise of your reply is that the Constitution is written in stone. Decisions and rights from Supreme Court Decisions are invalid. Why not answer my question? Or do you believe the Constitution is written in stone for a single issue only?
I also said it CAN be changed. By Amendment. The Courts CAN'T make Law.
 

SavannahMann

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