QUOTE(hayleyanne @ Apr 20 2005, 03:53 PM)
Erasmussimo, I will give it one more try. This time try not to focus on trees when we are discussing the validity of a line of legal reasoning and maybe you will understand my criticism of Roe a little better. You might actually be able to provide a reasoned response.
...Since you missed it the first time, let me spell it out for you...
C'mon, hayleyanne, let's keep it clean here.
QUOTE(hayleyanne @ Apr 20 2005, 03:53 PM)
Inductive reasoning by analogy can be refuted by showing that the point of comparison is not relevant. For example, Prince was a denial of a claim related to religious freedom and equal protection. Pierce reflected first amendment rights. The holding in Loving involved an invidious racial classification. None of these cases bear on the subject of abortion at all. None of them even remotely address abortion and none of them (aside from Griswold and Eisenstadt) even mentions a specific right to privacy.
You're leaving out a lot of relevant material. Blackmun lists the following cases that recognize a right of personal privacy or a guarantee of certain areas or zones of privacy:Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891)Stanley v. Georgia, 394 U.S. 557, 564 (1969)Terry v. Ohio, 392 U.S. 1, 8-9 (1968)Katz v. United States, 389 U.S. 347, 350 (1967)Boyd v. United States, 116 U.S. 616 (1886)Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)Griswold v. Connecticut, 381 U.S., at 484-485Meyer v. Nebraska, 262 U.S. 390, 399 (1923)Loving v. Virginia, 388 U.S. 1, 12 (1967)Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942) Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465Prince v. Massachusetts, 321 U.S. 158, 166 (1944)Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)
Each of these cases presents one small fragment of support for Blackmun's inference of a right to privacy. None of these cases address abortion, but Blackmun is not using them to draw an analogy turning on abortion; he uses them to draw an analogy turning on the right to privacy, which they most definitely DO in some fashion address. Since abortion is not the point of comparison, your rejection of Blackmun's argument misses its mark.
QUOTE(hayleyanne @ Apr 20 2005, 03:53 PM)
Inductive reasoning by analogy can also be refuted where the generalization upon which it is based is faulty. A faulty generalization would be one which is based on accepting weak or incompetent authority. A constitutional decision with no basis in the text of the Constitution is weak. Griswold and Eisenstadt were not grounded in the text of the Constitution at all.
Your last sentence is patently false; here are some relevant quotes from Griswold:
QUOTE(Mr. Justice Douglas)
"Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment."
"By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. "
"In NAACP v. Alabama we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right."
" In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion."
"Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful."
"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender tohis detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Fourth and Fifth Amendments were described... as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."
QUOTE(Mr. Justice Golberg)
"My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, I add these words to emphasize the relevance of that Amendment to the Court's holding.
The Court stated many years ago that the Due Process Clause protects those liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental."
The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.
In presenting the proposed Amendment, Madison said:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people."
He further stated, referring to the Ninth Amendment:
"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others."
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people."
Hayleyanne, you are dismissing this logic as absurd and laughable. I cannot understand why you treat such careful reasoning with such contempt. Yes, you're welcome to disagree with it. But these guys did their homework and they presented their logic with care and precision. They don't deserve your contemptuous characterizations.
I realize that you will pounce upon this as taken from Griswold, not Roe, but Roe was closely based on Griswold and you have trashed Griswold just as vehemently as you trash Roe.
QUOTE(hayleyanne @ Apr 20 2005, 03:53 PM)
I will ask you again:
Please demonstrate how Roe is the tightly reasoned legal opinion that you claim it to be.
I would hope that a simple listing of the many cases that Blackmun cites, and the extensive preface that you decry, which presents an exhaustive review of the history of abortion law, the medical issues related to abortion, and the opinions of professional medical associations, would demonstrate that, at the very least, Blackmun did his homework on every possible aspect of the problem. But allow me to demonstrate to other readers just how careful Blackmun's reasoning on one tiny issue was: the question of whether an unborn fetus constitutes a "person" under the law:
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, Ind., at , 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P. 2d 617 (1970); State v. Dickinson, 28 Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.
This is only about one-third of the total argument on the question "is a fetus a person?" I suspect that you will dismiss this all as absurd and laughable, but at this point I'm writing for the other readers to demonstrate to them that your many insistent and confident assertions are not grounded in the facts.
There's more to add, but this post is already entirely too long, so I shall leave off here and give you the opportunity to respond.