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The Semantics of Constitutionality

Rigby5

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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.

I see your point, but disagree.
Originally the Bill of Rights did not at all try to list all rights.
It was more about restricting the federal government.
But the 14th amendment changed all that.
The 14th amendment put the federal government in charge of defending all rights, including those not previously in the Constitution.
Clearly privacy is a right, and to not be forced to deliver a baby is also a right.
And the 14th amendment makes them Constitution rights, meaning they are federal instead of by the states.
 

Rigby5

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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.

Wrong.
Most rights were deliberately left out of the Constitution because they are infinite, and the intent was for the judiciary to fill them in as necessary.
Rights never are or have to be legislated.
You only legislate rights if there has been a consistent pattern of abuse of those rights.
 

Rigby5

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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.

Wrong.
Abortion was common and legal during the time of the founders, so then clearly it can't later be made illegal, by anyone.
Humans have a high fertility rate, like rabbits, and that can no longer be allowed.
It would be the destruction of the whole planet.
 

San Souci

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Wrong.
Abortion was common and legal during the time of the founders, so then clearly it can't later be made illegal, by anyone.
Humans have a high fertility rate, like rabbits, and that can no longer be allowed.
It would be the destruction of the whole planet.
Yes ,Mein Fuhrer.
 

San Souci

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Wrong.
Most rights were deliberately left out of the Constitution because they are infinite, and the intent was for the judiciary to fill them in as necessary.
Rights never are or have to be legislated.
You only legislate rights if there has been a consistent pattern of abuse of those rights.
Murdering babies and selling their PARTS for Stem Cell research is only RIGHTS for Ghouls.
 

g5000

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Roe v Wade doesn't mention heartbeats at all.
But it does mention viability, which they considered to be somewhere between 24 and 28 weeks.
 

g5000

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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.
The arguments against gay marriage are the same arguments which were made against interracial marriage.

The 14th amendment protects both. Equal protection of the laws.

If the government wrote a law bestowing free lollipops to every American, that would be entirely constitutional. But if the government added a section which excluded country music artists from receiving a lollipop, that would violate the constitution.

Just so with gay and interracial marriages. The government has written laws bestowing all kinds of cash and prizes to married couples. They cannot exclude married couples that make them feel icky unless it can be demonstrated such couples are a societal harm.

It used to be argued that interracial marriages were a societal harm which were going to create a "mongrel race", and the opponents used the Bible as justification for their hatred.

You can't outlaw homosexuality just because it makes you feel icky. That's unconstitutional.
 

San Souci

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That is the whole point, in that government does not get to force a woman to do or not do anything.
The woman gets to decide if she wants to carry to term or not.
Maybe the woman should not be promiscuous? Or maybe use Condoms? Murder is a bad option.
 

SavannahMann

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I said what I said. No interpretation necessary. There are no gray areas.

We consider the First Amendment an individual right. Yet, it is strictly limited, by the wording of the amendment, to Congress. Why can’t a State pass laws limiting Free Speech? The text of the Amendment is that Congress Shall Pass No Law.

If we are going by strict interpretation of the Constitution, what is written and nothing more, shouldn’t we apply that to everything? Or are we going to ignore all the others and only focus on Abortion to make you all happy?
 

Pellinore

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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.
G5000 correctly explained most of this in his post, a few above mine.

The Constitution is a very short document, and couldn't possibly cover every aspect of law even for a relatively small nation as we were in 1789. The right to privacy is not explicitly stated in the Constitution, but it is implied by rights such as protection against illegal search and seizure.

Equal treatment under the law comes from the 14th Amendment, which was the basis for the Civil Rights Act of 1964, which was the basis for the recent Supreme Court ruling saying that you can't fire your gay and trans employees any more, because sexual preference and gender identity counts under the word "sex."

The Supreme Court can't make law; it can only interpret law brought before it under judicial review, which is also not explicitly in the Constitution. It is the result of a court decision based on Article III, and Marshall's reading of the Federalist Papers. So again, you have to consider what's implied in addition to what is explicit, which can really be a most-of-the-iceberg-is-underwater kind of activity, but that's how it works.
 

SavannahMann

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Personally, speaking for myself, I sincerely hope that the Texas Abortion Law stands.

I am in Pro Choice. But I hope the arguments made on Monday win the day with the Supreme Court. And here is why.

If Texas wins a state can abridge and violate any Constitutional Right by writing a copycat law. Second Amendment? Sure you have it. But anyone can sue you for tens or even hundreds of thousands of dollars if you exercise it. First Amendment? Sure you have it.

Michigan as we all know has a large Muslim Population. Imagine if they pass a law that anyone who goes to a Christian Church is able to be sued for $10,000 by anyone. A copycat of the law in Texas. The Federal Government would be prohibited by the decision from Monday from doing anything. Christians would be bankrupted, Christian Churches would be forced to close immediately.

Or you could pass a law that anyone driving a car from Texas in your state is liable to be sued. No problem. No Constitutional violation. No Problem.
 

Rigby5

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Maybe the woman should not be promiscuous? Or maybe use Condoms? Murder is a bad option.

Promiscuity is necessary for normal biological balance.
The body makes you have sex just as it makes you eat or sleep.
If you refuse your body trying to force you to have sex, you may not die, but you may wish you had.

Nothing wrong with condoms and birth control, but they don't always work.
And things can change.
Abortion will always also be a necessary option.
And a fetus is no more sentient than a single sperm, which is also alive.
 

Rigby5

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We consider the First Amendment an individual right. Yet, it is strictly limited, by the wording of the amendment, to Congress. Why can’t a State pass laws limiting Free Speech? The text of the Amendment is that Congress Shall Pass No Law.

If we are going by strict interpretation of the Constitution, what is written and nothing more, shouldn’t we apply that to everything? Or are we going to ignore all the others and only focus on Abortion to make you all happy?

The 14th amendment.
Originally the Bill of Rights was mostly about limiting the feds.
But after the 14th amendment, now the feds can prosecute the states if they violate individual rights.

A strict interpretation of the Constitution means that rights are infinite and can never all be listed.
Which then implies judges have to reveal them as needed in each individual case.
For example, privacy.
Not listed anywhere, but still protected by judicial proclamation.
Which is why judges have to be so specially selected.
 

Rigby5

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It is not "murder" until after you prove viability.

Even when viable, it is not murder if not sentient, like:

{...
Carolyn Jones was taken off life-support May 13 against her family's wishes. (Image source: Facebook/Mark Dickson) A Texas woman who had her life-sustaining breathing assistance withdrawn by the doctors who were meant to be caring for her has been saved through an emergency hospital transfer.
...}

{...
The Terri Schiavo case was a euthanasia legal case in the United States from 1998 to 2005, involving Theresa Marie Schiavo (née Schindler) (/ˈʃaɪvoʊ/; December 3, 1963 – March 31, 2005), a woman in an irreversible persistent vegetative state. Schiavo's husband and legal guardian argued that Schiavo would not have wanted prolonged artificial life support without the prospect of recovery, and in 1998 elected to remove her feeding tube. Schiavo's parents disputed her husband's assertions and challenged Schiavo's medical diagnosis, arguing in favor of continuing artificial nutrition and hydration.[1][2] The highly publicized and prolonged series of legal challenges presented by her parents, which ultimately involved state and federal politicians up to the level of President George W. Bush, caused a seven-year (1998 to 2005) delay before Schiavo's feeding tube was ultimately removed.
...}
 

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