Listening to Fr. Frank Pavone’s homily on EWTN’s daily Mass today, my mind wandered to the Roberts confirmation hearing. Well, not to Roberts’s, but to another Supreme Court nonimee’s: a nominee whose public statements on Roe …

Just so we’re clear, I’m an attorney who lectures (occasionally) on constitutional law. Not that I don’t make mistakes, but believe me — I don’t get my information from Wikipedia.

First of all, 14th Amendment jurisprudence began shortly after the 14th Amendment was ratified. The 14th Amendment was directly applied to the issue of privacy in the 1920’s (although it was implicitly applied in far earlier cases).

Anyway, you state that SCOTUS “could easily decide that the rights of a person begins at . . . about the third trimester”. Certainly, it could, and there are arguably some societal advantages SCOTUS to do so (you mention a few). But SCOTUS (as conservatives point out) are not supposed to engage in social experimentation; they should follow the law. So what is the legal rationale for that?

Let me dispel something else you wrote, i.e., that the Roe court created a “science” suggesting that life begins in the third trimester. The Roe Court did no such thing. They specifically said that when life begins is more of a philosophical and religious matter, and they weren’t going to touch that with a ten-foot pole.

Instrad, they relied on science (sound science) for the conclusion that, at the third trimester, a fetus is capable of self-sustained life (i.e., life outside the womb), and therefore, states — if they wanted — have a compelling interest in preserving that potential life.

You also argue that Congress can pass a law outlawing abortion. Under what congressional power? The Commerce Clause?

Finally, the Ninth Amendment. You may not know this, but the reason it was put there in the first place was so that future generations (i.e., us) wouldn’t get the idea that our rights are limited to ONLY those SPECIFICALLY enumerated in the Constitution.

That said, your fears about SCOTUS “finding” unenumerated rights are unfounded and frankly, paranoid. Contrary to what you suggest, rights are not pulled from the judicary’s butt. That’s the kind of argument I hear from someone who has never read a court opinion.

If you read Griswald (which, by the way, wasn’t the first SCOTUS case to recognize privacy as a fundamental right), you see that SCOTUS provided a rich explanation of the importance of privacy to the Framers, and throughout American history. In fact, you get that from reading the Roe v. Wade decision. You may disagree with the reasoning, but to argue that judges just make stuff up is the intellectual equivalent of yelling “liar, liar” in a debate.

The 14th amendment lay dormant until the 1920’s when the SCOTUS decided that a corporation is a person and must be afforded the protections of the 14th amendment.

The SCOTUS could just as easily decide that the rights of a person begins at…..how, about the third trimester? That would be in keeping with the “science” the SCOTUS invented in Roe.

There are some compelling reasons to reach this conclusion. It could allow the courts to protect the fetus from substance abuse or increase the penalty for murder (Laci Peterson) and other issues that would protect the baby about to be born.

Many cultures in the world mark birthdays from the approximate date of conception. We have the tradition of marking a birthday at the emerging from the womb date. This is not science; it is custom. Customs can be changed or even ignored in law.

Congress can certainly pass a law outlawing abortion. State laws must comply with the acts of Congress. States can have stricter laws, but not more lenient laws than Congress mandates.

So far as the “enumerated rights” are concerned, the Bill of Rights is a list of issues that inform the Congress of general rights held by the states and the people that Congress may not abridge.

However, there is a nasty fly in the ointment of the Bill of Rights: the ninth and tenth amendments. When you connect the ninth and tenth amendments you learn that the just because a number of prohibitions against the power of the Federal government are listed in the Bill of Rights, no one should consider the list conclusive. Unmentioned rights remain with the people.

If the SCOTUS were to dip into this Pandora’s Box to see what unenumerated rights they could find, it would be carte blanche for an activist SCOTUS to loot the Constitution of its meaning and to usurp the power of “we the people” who give the government, including giving the SCOTUS its power.

For that reason. the SCOTUS has assiduously avoided opening the ninth and tenth amendments as the basis of their opinions.

The damage (my word) done by Griswold is that Justice Douglas put on his swami hat and found “rights” emanating from the penumbra of parts of the Bill of Rights. This is as close as the SCOTUS has come to cracking open the ninth and tenth amendments.

Well, Douglas is dead and he failed to leave a clear guide to the penumbra he was reading through his tinfoil hat.

The entire “right to choose” is based on a perversion of the finding in Griswold which has popularly taken on the misapplied notion that the case established a “right to privacy.” Liberals have parlayed the supposed “right to privacy” to mean that a woman can privately choose whether to continue a pregnancy or not.

Remember Dred Scott? The SCOTUS said a slave is property and therefore……… Well, as it stands now, the fetus is property and if you want to kill it, go right ahead.

What goes around, comes around.

In short: When marriage stopped being part of the reproductive process, then MEN’s RIGHTS began to be violated. A new case, one asserting 14th Amendment rights by a FATHER in an abortion case could provide all the necessary legal requirements for, if not overturning Roe, at least reducing it’s scope.

And for a Judge who is concerned about avoiding legal upset, a scaling back of Roe is more desirable than an elimination of it.

Apparently Roberts has a good grasp of what the Founders intended, and does not think the courts, in their infinite wisdom, are superior to the other branches of government. Good for him.

You asked for someone to correct you if you are wrong, so here I am!

If Congress passed a law saying it was illegal to kill unborn babies, the law would probably be ruled unconstitutional in a heartbeat. Not because of privacy or anything like that, but because such a law would be outside the scope of Congress’s limited federal powers. In a word, federalism.

States, on the other hand, have the power to enact such a law. And that’s what Texas did many many years. And that’s what led to the Roe v. Wade case (”Wade” was the District Attorney of Dallas County, attempting to enforce the abortion ban). And you know what happened there.

Anyway, the thing to remember is that neither Congress, nor the states, can pass laws that violate constitional protections (that’s a bit of an overgeneralization, but that’s the “default” rule).

So, unless the Supreme Court rules there is no right to privacy when it comes to abortions, then the only “legislative” way to change the landscape is by constitutional amendment. Congress cannot be the answer here.

As a side note, the most enjoyable part of yesterday’s committee session was watching Roberts turn Joe Biden (D-Plagiarism) into a babbling idiot.

“That is not covered by the Bill of Rights”

“You will need to explain what you call constitutional protections of privacy. Please skip over what you find implied and go straight to the actual wording.”

Why are you making me rely exclusively on actual wording? What makes you think the Bill of Rights is inclusive of ALL our rights?

The Constitution does not enumerate all of our rights, including (as the Declaration of Independece suggests) many “self-evident” ones. In fact, the Constitution specifically admits that it does not enumerate all of our rights.

Just out of curiosity, will a human fetus become anything but a human being? You probably mean “personhood” since the key word in the 14th amendment is “person.” Could we move personhood to age 18 months and call the time between birth and 18 months the “post fetal/pre-personhood” period?”

Or we could go the other way, and call every sperm a “human being” or “person”. Maybe we can get them qualified as “dependents” and get huge tax deductions (sorry, ladies).

I’m being facetious (as I hope you are), but there is a larger issue: where one draws the line on “personhood” is entirely subjective. There’s no “correct” answer, only differences of opinion.

But even more importantly, the answer (whatever it is) draws upon moral, ethical and religious beliefs. And it is not the role of a nanny government (either through the legislature or the judiciary) to tell you the “correct” answer.

I am so ready for a no nonsense black woman to straighten out that court……………..

they wanted a minority or a woman or both and isn’t it nice to know, he has two he can give them

Records privacy cases have flooded the court. The court has not been able to design a landmark decision that would guide the appellate courts on records privacy simply because records privacy is so nuanced. i.e. Do you want your employer to do a complete DNA test on you to learn your potential weaknesses? That is not covered by the Bill of Rights. But it probably fits your “I know privacy when I see it” concept. Well, the flasher on the kindergarten playground thinks he does too.

You will need to explain what you call constitutional protections of privacy. Please skip over what you find implied and go straight to the actual wording.

Just out of curiosity, will a human fetus become anything but a human being? You probably mean “personhood” since the key word in the 14th amendment is “person.” Could we move personhood to age 18 months and call the time between birth and 18 months the “post fetal/pre-personhood” period? Then we could stop getting rough on mothers who toss their babies in the Dumpster.

It is a canard to say that every landmark finding is judicial activism. The left is pulling this semantic voodoo because they have to have legislating from the bench (true judicial activism) to carry out their agenda. They sure haven’t been able to do it by selling it to the public and getting elected to do it.