Another Constitutional Debate thread got me thinking about the power of Precedent in the Supreme Court, specifically as it pertains to Roe V. Wade. I, for one, believe that abortion is not a Constitutional right, but still believe that abortion should be legal...But I'm getting ahead of myself, here are the debate questions...

Should Roe v. Wade be overturned as it is not a Constitutional right? Why or why not?

Do you believe precedent is more important than, "getting it right", Constitutionally speaking?

CP

Should Roe v. Wade be overturned as it is not a Constitutional right? Why or why not?

Roe v. Wade is a very badly reasoned case with no textual support in the Constitution. I would have no problem with it being overturned. That having been said, I think it is best to leave it in place, as it has been the law for 30+ years. Sorry, but I can't come up with any better reason to keep it, than the pure value of respecting precedent that is so old.

Do you believe precedent is more important than, "getting it right", Constitutionally speaking?

Getting it right is more important. However, I believe that the Court should be extremely hesitant to overturn case law. We should respect the precedent.

However, we should not be expanding precedent to essentially rewrite the Constitution. The Court should acknowledge that some cases were wrongly decided in the first place and then refuse to build upon them.

If we get strict constructionists on the Court to replace O'Connor and Rehnquist, we will hopefully be able to establish a healthy respect for the text of the Constitution once again.

I don't believe that the constitution is an all inclusive document, so an issue that is not specifically mentioned can be determined without referring to it.

Also, I see abortion as more a moral dilemma than a legal one, and the morals police are the churches you might belong to.
Your church can have a say, but cannot force you to adhere to their rules. If you don't like what they say, you are free to change religions, and they are free to kick you out.
On a truly legal issue, our government not only has a say, but can enforce the rules. You can't easily change governments, and the government can't easily kick us out.

Should Roe v. Wade be overturned as it is not a Constitutional right? Why or why not?

Your first question is really two: is it a constitutional right? And if not, should it be overturned? The answer to the second question, however, is synonymous with the later question you ask. (Unless Roe is a special case; it is, but I see no reason why it is a special case such that this generalization should not apply, though I am open to suggestion.)

The reasoning behind Roe v. Wade, as I understand it, was that laws against abortion, because of its intimate nature, violate a right to privacy, a right that can be overridden with sufficient cause. The cause given is that the fetus is worthy of legal protection, even if not as a human, at least as a separate entity. The Supreme Court ruled that this is not sufficient because most abortion statues were passed after the fourteenth amendment, enforcing due process, and thus, the right to privacy.

The right to privacy is, itself, a questionable application of the due process clause (established in Griswold v. Connecticut). Even so, the idea that the decision for what constitutes an illegal action cannot be changed, with the implication that this cannot even be changed within a state constitution, is ludicrous.

Do you believe precedent is more important than, "getting it right", Constitutionally speaking?

No. Unquestionably, no. With that logic, we would still have Plessy v. Ferguson. Applying that logic elsewhere, holding precedent above all else, is all but the definition of argumentum ad antiquitatem, generally considered a logical fallacy. I see no logical reason why precedent should be placed foremost. Also, if something heinous should come to pass, unquestionably there is a duty to change it. Even the most adherent to literal conservatism would in all probability admit this given severe examples.

The Supreme Court has grown tyrannical; all it should do, as a judiciary, is to prevent flagrant contradictions. While the Constitution does not, of course, mention any specific case study, any inferences with regard to intent or ambiguity must be left to the legislative branch; that's why it's there. I believe my signature, which I have had for days now (well before this thread), makes my sentiment clear.

Should Roe v. Wade be overturned as it is not a Constitutional right?  Why or why not?

There are rights not specifically mentioned in the Constitution and the 9th Amendment exists to illustrate the fact that these unmentioned rights still should be protected.  The right to privacy, while not specifically mentioned in the Constitution, is still a right worthy of protection.  There is a lot of spin put on the ideas encompassed in Roe v. Wade.  Abortion is one of the ramifications of guaranteeing a right to privacy at this point.  I say at this point because with the increase in laws related to the murder of a fetus, there exists a groundwork for a successful case against abortion.  Roe v. Wade really centers on the legal status of a fetus.  If a fetus has no legal recognition as a human being, then you can't murder a fetus.  If it isn't legally recognized as a human being capable of being murdered, then a woman has the private right to rid herself of it without it being a criminal offense -- no life is lost (legally).  Personally, I'm not an advocate for abortion except in cases of rape and medical necessity.  If the country continues to move down the path of recognizing the legal rights of a fetus, then I certainly support the idea of overturning Roe v. Wade should it be re-examined.  I do not believe precedent should overturned on a whim, the decision specifically mentions the conditions existing in this country that allowed for legalized abortion.  The primary one was the lack of legal recognition of a fetus as a living entity capable of being murdered.  If that condition changes, then that precedent should be overturned because its continued existence creates a conflict in the law.


Do you believe precedent is more important than, "getting it right", Constitutionally speaking?

I think precedent should be looked at very closely before attempting to decide what "getting it right" would be.  That is such a relative term, "getting it right."  There needs to be a strong respect for precedent, but I think that if the conditions exist to make that precedent come into conflict with the rest of law, the precedent needs to be re-examined and, either, the rest of the related law needs to be adjusted so that the precedent is no longer in conflict with it or the precedent needs to be overturned.

Use of the Ninth Amendment to support the existence of a right to abortion is nothing more than a judicial sleight of hand. The Ninth Amendment made clear that enumerated rights in the Bill of Rights did not by implication, increase the powers of the national government. It does not itself guarantee any particular fundamental right.



The Court’s sleight of hand in Roe came when it deemed abortion a “fundamental right”. It based this holding on past precedent (Griswold) holding that the “fundamental right” to privacy issues from a “penumbra” of rights stated in the Bill of Rights.

The pesky little problem with this analysis is that it provides no basis for determining when a right is indeed “fundamental”. In fact, the articulation of a fundamental right had always been one that is “rooted in our nation’s history”. Which makes the holding in Roe all the more laughable as our country had a significant history of abortion being illegal. It is truly odd that the Court would hold it to be so “rooted in our nation’s history and traditions” as to be a fundamental right.

Ok, how about the First, Fourth, Fifth, and Fourteenth amendments. Are all of those judicial wizardry as well? The point of the 9th amendment was to make it obvious that by enumerating specific rights in amendments 1-8, they were not in fact making an exclusive list of fundamental rights. This of course is where a lot of constitutional experts believe the bill of rights was a bad idea. Including any right introduced the idea of excluding others. If the constitution was to define only what Congress could do, all other areas were off limits. Recent expansions of the commerce clause seem to make this point moot, sadly.


If I'm reading this correctly, does this mean that you also disagree with Griswold? Or are you only taking issue with the extension of Griswold to include abortion decisions?

Your analysis puts the cart before the horse, however. In Roe, they did not make the case that a right to abortion itself was fundamental, rather that the right to privacy was, and ability to choose to terminate a pregnancy was withing that scope (or inclusive). Much like the 9th amendment, no one has the ability to know at a point in time what activities could be protected under the framework of privacy. For example, the use of the internet couldn't have been forecast.

Roe v. Wade should not be overturned, this was not judicial extrapolation at play. The only way the case for overturning works is if you believe the Bill of Rights shouldn't exist (which is a tenable argument, but denied by reality). If a right to privacy exists then the ability to terminate a pregnancy easily exists within that framework.

As for the power of precedent, I guess I can't really answer this since I believe the precedent was correct, and the decision got it right.

How could they be judicial wizardry? I don't follow your point here.


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Or, more likely, the 9th amendment sought to clarify that the Bill of Rights ought not be read in such a way as to increase the powers of the national government in areas not enumerated. There is a difference. It is a leap to say that the 9th amendment means that there are "fundamental rights" out there just waiting to be identified by the Court, and once identified, afforded extreme constitutional protections. As I pointed out, the problem with your reading of the 9th amendment is that we have no clear means of identifying what ought to be elevated to the status of a fundamental right.





Of course it does. There is no constitutional right to privacy that emanates from a penumbra of rights articulated in the Bill of Rights.



How does my analysis put the cart before the horse? Roe is built on a house of cards (the right to privacy) and as such, is weakly supported.

The 9th wasn't the only amendment used to demonstrate privacy being a fundamental right. As noted in Roe, the 1st, 4th, 5th and 14th amendments all were referenced in support of a right to privacy. As was common law predating the constitution.


Well, not gonna derail this debate with a privacy tangent. Needless to say we disagree at this level. (that was where the cart before the horse comment came from, so its duly dismissed as well)

Doc

Doclotus.

Then describe the exact process of those amendments being used to show a right to privacy. Don't give the principles behind the amendments, either, because why the amendments were passed doesn't change what amendments were passed. The constitution specifically gives implied power to the legislature, so of course it's not the judiciary's job.

As for common law, that's utterly irrelevant. Earlier laws not explicitly written into any official code, no matter how widely held they are, cannot be used vis-a-vis current law. Otherwise, we would have sodomy laws, laws against pornography, a far stricter code of dress, and ceremonial duels.

As for the ninth amendment, it states, simply and plainly: "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In Griswold, the Supreme Court decided that the right to privacy is among the rights retained by the people. How did the people retain this right? The people never voted to have this right retained for them; the Supreme Court decided it was. There is no support in any part of the lawfully, legislatively written US Code for the right to privacy. The inescapable conclusion is that the Supreme Court wrote its own law.

This is contrary to every principle of Republican government. The Supreme Court has become tyrannical. They must be stopped.

As I said, I won't derail this thread with a privacy debate, as I don't believe it central to CP's original questions, but I will counter this statement. You consider it contrary, I consider it fundamental to the very essence of government.