Ultimate Joe wrote:QUOTE
"Hefty amount of respect"? Could you choose more subjective terminology. Who chooses what amount of respect is appropriate? I think an extremely liberal and RIGHTS-based reading is the highest honour that you could afford the framers myself. But who is to say. Apparently, you think you are, since you have abandoned all pretense of speaking from a legal point of view.
Yes, judges ought to use a "hefty amount of respect"
toward history and tradition when reviewing laws to determine their constitutionality. They should look to the Constitution itself (the language) and interpret it in a way that accords great respect to our historical traditions. Like the Shakespeare example, it is not the Constitution that is on trial it is the personal views of the Justices. To assert that historical tradition and practice should be a factor weighed in jurisprudence is an
established legal requirement. In fact if you read the case law in this regard you will always see at least "lip service" given to this requirement in the realm of substantive due process and fundamental rights under the 14th amendment. The best example of pure lip service given to the concept is in the Goodridge opinion out of Massachusetts. Not to beat a dead horse, as I did in that same sex marriage thread, I have to suggest you look at that opinion because it is the best example of judges
talking about the importance of history and tradition when identifying fundamental rights but then not actually following through in their opinion.
Ultimate Joe wrote:QUOTE
Well the fact is that simply being "within the understanding" is not sufficient. When wiretaps were first practiced in the 1920's courts did NOT read the 4th amendment this way. When information is intercepted but not seized it has not lost any value for the original owner, or the transmissor; nor has it left their possession against their will. As such, it is clearly not protected by the 4th amendment, which saught to guarantee people from having their rights to property abrogated by the state. (Or such a reasoning could proceed.)
Well it certainly could have been read in a way so as to find wiretapping unconstitutional. Such a reading would have been consistent with the intent of the Framers under the Fourth Amendment.
Ultimate Joe wrote:QUOTE
Now, if we do translate the fourth amendment, we see that people had a certain "expectation of privacy"... and as the complexities of ownership and thought expanded, so did that expectation. If someone expects 80% of their property to be private (just trying to make this simple for you), then we need to expand what is protected under the 4th amendment to make that 80% remain private. Presto-chango, you have substantive due process. If you can demonstrate how the 4th amendment should apply to the FBI intercepting and reading emails (without interfering in their transmission) without a substantive due process argument, I would LOVE to hear it.
"Presto- chango"-- yeah good way to describe the way the judicial activists view the constitution to further their political agendas. Sorry that is not the way it works. A fundamental right must first be identified-- before a judge can go forward with a constitutional reading that a law is not unconstitutional. My point is that finding a fundamental right of our citizenry to be free from the government intercepting our telephone conversations against our will is consistent with the text of the 4th amendment and consistent with our history of interpreting that amendment and what the framers would have thought.
Ultimate Joe wrote about the origin of the "right" to an abortion:QUOTE
You're a lawyer and you don't know? That's a bit surprising. The "right" came from the understanding that for a person to be able to exercise certain rights free from government interference, then there must be a certain "zone of privacy" which extends throughout the person; INCLUDING her body and mind. This in fact harkens back to one of the most ancient legal traditions we have in the common law, that the human body is the property of that person. In order for someone to be able to freely exercise their rights over that property, there must be an extension of privacy that excludes government interference in all but the most pressing circumstances.
Again, I ask you -- where does the right to an abortion originate from in our Constitution and our history and tradition? The answer-- as any good lawyer will tell you -- is that it is no where spelled out in our Constitution. It comes from the famous opinion by Douglas in Griswold v. Connecticut-- He said there is a right to privacy that issues from the famous penumbra of rights in our Bill of Rights. Douglas is just a judge writing in the 1960s who created this supposed right and the famoous penumbra. PRESTO CHANGO -- Douglas waives his magic wand (or should I say sceptre) and voila-- he created a RIGHT in our Constitution that guarantees that a woman can have an abortion on demand. Baloney.
Ultimate Joe wrote:QUOTE
Can I nominate this as the most profoundly incorrect statement of the year on AD? Abortions have in all likelihood existed longer than recorded history. In Roe v Wade she wasn't petitioning to have an abortion, but rather to have a LEGAL ONE, because so called "back-alley" abortions had existed for centuries.
Don't be silly. This country has had no history or tradition of
legal abortions and that is what Roe was asking for. Come on, you can do better than that.
I am disappointed.