Roe v. Wade decisions (was Re: OT - "lie" vs "error")

"Rick Smith" <ricksmith@mfi.net> wrote in message
news:116ftfpeadvt431@corp.supernews.com...
>
> I don't know what criteria the Supreme Court used;
> but it is clear to me that all laws, throughout the United
> States, that define and punish offenses against people
> must be based on violation of the other's rights; not
> morality, nor ethics, nor religion.

I found the text of Blackmun's reporting of the Roe v. Wade decision,  as
well as Rehnquist's dissent and Stewart's concurrence at
http://www.tourolaw.edu/patch/Roe/ .  All three make interesting reading.

In the decision itself, I found interesting the discussion of the history of
anti-abortion laws in both the US and in England, and the observation that
most such laws seem to have been concerned about preserving the health of
the *mother*, given that antiseptic and antibiotic treatment was in its
relative infancy.

Also interesting was Rehnquist's dissent, which hinges on three basic
issues:

1)  It wasn't demonstrated that at the time of the lawsuit the plaintiff was
pregnant; all that was clear was that she was pregnant when she filed the
complaint, and thus she could as well have been in the *last* trimester as
the *first*.  Thus the assertion in the court's decision that the state has
no compelling interest in a pregnancy in the first trimester doesn't
demonstrably relate to the case at hand.

2)  Rehnquist disagrees with the decision having anything to do with the
right of "privacy" because it involves a licensed physician.  He also feels
the decision makes the "compelling state interest" tests even more 
than before.  And he gives more status to the fact that explicit
anti-abortion laws had existed for a century and more among the various
states; he does not discuss the decision's assertion that the purpose of
such laws was to protect the mother and not the fetus.

3)  The decision strikes down the Texas law (which disallowed abortion at
any point in the pregnancy unless the pregnancy threatened the life of the
mother) in its entirety, and at the same time acknowledges that the state
might have a compelling interest in preventing abortions in the second and
third trimester; on that basis the decision was too broad and did not in
fact address the case before the court.

Stewart's concurrence seems to emphasize the concept that freedom of
personal choice in matters of marriage and family life is one of the
liberties protected by the Due Process clause of the 14th amendment, and
claims that the choice as to whether to terminate a pregnancy or not is as
protected as the choice to bear or beget a child in the first place.  It
also asserts that the *state*'s stated interests -- protection of the health
and safety of the pregnant woman -- are legitimate, but the blanket
prohibition in the Texas statute is a constitutional violation precisely
because it is too broad and because the issues of state interest in that
broad context aren't demonstrated.

-Chuck Stevens

"Chuck Stevens" <charles.stevens@unisys.com> wrote in message
news:d495s7$2h3u$1@si05.rsvl.unisys.com...
>
> "Rick Smith" <ricksmith@mfi.net> wrote in message
> news:116ftfpeadvt431@corp.supernews.com... 
>
> I found the text of Blackmun's reporting of the Roe v. Wade decision,  as
> well as Rehnquist's dissent and Stewart's concurrence at
> http://www.tourolaw.edu/patch/Roe/ .  All three make interesting reading.
>
> In the decision itself, I found interesting the discussion of the history
of
> anti-abortion laws in both the US and in England, and the observation that
> most such laws seem to have been concerned about preserving the health of
> the *mother*, given that antiseptic and antibiotic treatment was in its
> relative infancy.

I have two problems with the decision.

First, I find a conflict between the state's compelling
interest in prenatal "life" and immunities. It seems to me
any "compelling interest" is a usurpation or means for
politicians to exercise control where they have no
authority. In the particular case, I see a moral or ethical
attachment to the state's claim of compelling interest.

Second, it seems to me that the idea of ensoulment is
a connection to religious beliefs; that is, upon death the
soul moves to an afterlife and the existence of an
afterlife, as I understand it, is fundamental to religious
beliefs. The application of religious beliefs abridges
privileges and immunities.

In connection with the last, I watched a discussion on
C-SPAN concerning the US Constitution and foreign
law. Justices Breyer and Scalia provided comments.
Justice Breyer made a statement to the effect that
homosexual sodomy is almost universally condemned.
But (no pun intended), if this condemnation is based
on religious or moral beliefs, then its application in the
US would, in my opinion, abridge privileges and
immunities. One of the Justices, on a different question,
said that courts rely on lawyers to tell them what the
law is and judges make their decision based solely on
what is presented. Thus far I have seen little
commentary on privileges and immunities.

"Rick Smith" <ricksmith@mfi.net> wrote in message
news:116hs1u5rutalc8@corp.supernews.com...
[snip]
>  Thus far I have seen little
> commentary on privileges and immunities.

I located the following in "The Constitution of the
United States of America: Analysis and Interpretation".

Unique among constitutional provisions, the privileges
and immunities clause of the Fourteenth Amendment
enjoys the distinction of having been rendered a
''practical nullity'' by a single decision of the Supreme
Court issued within five years after its ratification.

It seems that, once again, the Supreme Court doesn't
understand the Constitution as well as I do. <G>

Rick Smith wrote:
> "Rick Smith" <ricksmith@mfi.net> wrote in message
> news:116hs1u5rutalc8@corp.supernews.com...
> [snip]
> 
>
>
> I located the following in "The Constitution of the
> United States of America: Analysis and Interpretation".
>
>           Unique among constitutional provisions, the privileges
>      and immunities clause of the Fourteenth Amendment
>      enjoys the distinction of having been rendered a
>      ''practical nullity'' by a single decision of the Supreme
>      Court issued within five years after its ratification.
>
> It seems that, once again, the Supreme Court doesn't
> understand the Constitution as well as I do. <G>

Do I see a light bulb above your head?  :)


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"LX-i" <lxi0007@netscape.net> wrote in message
 news:9e232$426d9a5b$45491c57$30907@KNOLO
GY.NET...
> Rick Smith wrote: 
>
> Do I see a light bulb above your head?  :)

The analysis and interpretation of all parts of the Constitution
may be found at
< http://www.gpoaccess.gov/constitution/browse.html >.

The Fourteenth Amendment may be found at
< http://www.gpoaccess.gov/constitution/pdf/con025.pdf >.
It is also available in HTML through the general reference.

The Federalist Papers may be seen by beginning at
< http://www.constitution.org/fed/federa00.htm >.

The differences I have with the Supreme Court's understanding
of the Constitution are based upon my understanding of
Article VI, Clause 3, "... shall be bound by oath or affirmation
to support this Constitution ...", which I translate in two steps.
The first is to understand that the clause is 'a legal obligation'
to support 'this order by the people'. The second is to
translate support. The conclusion is that those identified in the
clause have "a legal obligation to hold up (as a standard) and
add strength to this order by the people"; such that any failure
to support this Constitution is, literally, to commit an illegal
act against the people. This particular understanding of 'support'
may be found in both Federalist 33, for the Congress, and
Federalist 78, for the Courts; both written by Hamilton.

"If the federal government should overpass the just bounds
of its authority and make a tyrannical use of its powers, the
people, whose creature it is, must appeal to the standard they
have formed, and take such measures to redress the injury
done to the Constitution as the exigency may suggest and
prudence justify." - Federalist 33

Here, Hamilton uses 'standard', and 'injury done to the
Constitution' may be seen as to weaken, which is in opposition
to the notion of 'to add strength to'.

"If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the
construction they put upon them is conclusive upon the other
departments, it may be answered, that this cannot be the
natural presumption, where it is not to be collected from any
particular provisions in the Constitution. It is not otherwise to
be supposed, that the Constitution could intend to enable the
representatives of the people to substitute their will to that of
their constituents. It is far more rational to suppose, that the
courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to
keep the latter within the limits assigned to their authority.
The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and must be
regarded by the judges, as a fundamental law. It therefore
belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance
between the two, that which has the superior obligation and
validity ought, of course, to be preferred; or, in other words,
the Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents."
- Federalist 78

Here, 'A constitution is, in fact, and must be regarded by
the judges, as a fundamental law.' [fundamental meaning
basis for]  and 'irreconcilable variance' suggests a standard
(something considered by authority or by general consent
as a basis of comparison [RHCD]); and 'the Constitution
ought to be preferred to the statute, the intention of the
people to the intention of their agents' suggests to add
strength to the Constitution or this order by the people.

And, while '[i]t therefore belongs to [judges] to ascertain
[the] meaning' of the Constitution, it does not follow that
judges may substitute their will for the will of the people.
To me, for the Supreme Court to render the 'privileges
and immunities' clause a "practical nullity" is a failure to
support this Constitution. In the discussion of the clause,
four constructions were given. The construction claimed,
by some, is "natural rights"; this is the construction I saw
without prior reference to the explanations and was used
by Justice Bradley, in dissent. Having read the
explanations, it seems clear, to me, that the intent was to
strike down all state laws that discriminate, particularly
those against the Negro. I am also influenced by the
Declaration of Independence which states, in part, "to
secure ... rights governments are instituted among men
deriving their just powers from the consent of the
governed"; that is the Declaration, while not law, does
establish 'state of mind' and to ignore "to secure ... rights"
as being fundamental to any constitution by "We the
people" is to invite discontent.

In effect, what the Court did was to deny the applicability
of privileges and immunities in favor of due process.

A bare half-dozen years later, in again reaching
a result in harmony with past precedents, the Justices
gave fair warning of the imminence of a modification
of their views. After noting that the due process clause,
by reason of its operation upon ''all the powers of
government, legislative as well as executive and judicial,''
could not be appraised solely in terms of the ''sanction
of settled usage,'' Justice Mathews, speaking for the
Court in Hurtado v. California, \40\ declared that
''[a]rbitrary power, enforcing its edicts to the injury of
the persons and property of its subjects, is not law,
whether manifested as the decree of a personal monarch
or of an impersonal multitude. And the limitations
imposed by our constitutional law upon the action of the
governments, both state and national, are essential to the
preservation of public and private rights, notwithstanding
the representative character of our political institutions.
The enforcement of these limitations by judicial process
is the device of self-governing communities to protect the
rights of individuals and minorities, as well against the
power of numbers, as against the violence of public
agents transcending the limits of lawful authority, even
when acting in the name and wielding the force of the
government.'' Thus were the States put on notice that
every species of state legislation, whether dealing with
procedural or substantive rights, was subject to the
scrutiny of the Court when the question of its essential
justice was raised.

\40\ 110 U.S. 516, 528, 532, 536 (1884).

Note that Roe v. Wade was decided on denial of due process.
Note, also, the implication that "to protect the rights of
individuals and minorities, as well against the power of
numbers, ..." suggests that state Constitutional amendments
prohibiting, for example, same-sex marriage, can not survive
challenge, due to the supremacy of the US Constitution.
It is simply a matter of time before the right case reaches the
Supreme Court.

Now, about that light bulb! What I recognized was that the
Supreme Court's failure to support the US Constitution by
not striking down laws improper under the Constitution was,
in fact, to deprive me life, liberty, and property without due
process of law. [Prior decisions by the Court allow that
'deprive' also includes being at risk of; so that while I am
not yet dead, my life is at risk.]

"Chuck Stevens" <charles.stevens@unisys.com> wrote in message
news:d495s7$2h3u$1@si05.rsvl.unisys.com...
>
> "Rick Smith" <ricksmith@mfi.net> wrote in message
> news:116ftfpeadvt431@corp.supernews.com... 
>
> I found the text of Blackmun's reporting of the Roe v. Wade decision,  as
> well as Rehnquist's dissent and Stewart's concurrence at
> http://www.tourolaw.edu/patch/Roe/ .  All three make interesting reading.
>
> In the decision itself, I found interesting the discussion of the history
of
> anti-abortion laws in both the US and in England, and the observation that
> most such laws seem to have been concerned about preserving the health of
> the *mother*, given that antiseptic and antibiotic treatment was in its
> relative infancy.

I have two problems with the decision.

First, I find a conflict between the state's compelling
interest in prenatal "life" and immunities. It seems to me
any "compelling interest" is a usurpation or means for
politicians to exercise control where they have no
authority. In the particular case, I see a moral or ethical
attachment to the state's claim of compelling interest.

Second, it seems to me that the idea of ensoulment is
a connection to religious beliefs; that is, upon death the
soul moves to an afterlife and the existence of an
afterlife, as I understand it, is fundamental to religious
beliefs. The application of religious beliefs abridges
privileges and immunities.

In connection with the last, I watched a discussion on
C-SPAN concerning the US Constitution and foreign
law. Justices Breyer and Scalia provided comments.
Justice Breyer made a statement to the effect that
homosexual sodomy is almost universally condemned.
But (no pun intended), if this condemnation is based
on religious or moral beliefs, then its application in the
US would, in my opinion, abridge privileges and
immunities. One of the Justices, on a different question,
said that courts rely on lawyers to tell them what the
law is and judges make their decision based solely on
what is presented. Thus far I have seen little
commentary on privileges and immunities.

Rick Smith wrote:
> "LX-i" <lxi0007@netscape.net> wrote in message
>  news:9e232$426d9a5b$45491c57$30907@KNOLO
GY.NET...
> 

[snipped a lot of really interesting stuff]

> Now, about that light bulb! What I recognized was that the
> Supreme Court's failure to support the US Constitution by
> not striking down laws improper under the Constitution was,
> in fact, to deprive me life, liberty, and property without due
> process of law. [Prior decisions by the Court allow that
> 'deprive' also includes being at risk of; so that while I am
> not yet dead, my life is at risk.]

I wasn't going nearly as deep with that as you did.  I just meant that
sometime the Supremes mess up an interpretation of the Constitution.
But, your text and links were very interesting - thanks!  :)


--
 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~~~~~~~
~   /   \  /         ~        Live from Montgomery, AL!       ~
~  /     \/       o  ~                                        ~
~ /      /\   -   |  ~          daniel@thebelowdomain         ~
~ _____ /  \      |  ~      http://www.djs-consulting.com     ~
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
~ GEEKCODE 3.12 GCS/IT d s-:+ a C++ L++ E--- W++ N++ o? K- w$ ~
~ !O M-- V PS+ PE++ Y? !PGP t+ 5? X+ R* tv b+ DI++ D+ G- e    ~
~ h---- r+++ z++++                                            ~
 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~~~~~~~