Thursday, August 04, 2005

Revenge of the baby killers

The past few days, EMILY’s List has been visiting my blog for some inexplicable reason. Usually when liberal and Democratic roups like the DSCC and the DCCC visit my website, they aren’t kind enough to leave a comment, which is fine by me since I don’t tolerate BS. Unfortunately, someone from EMILY’s List thought they could pull a fast one on me. Silly rabbit, Trix are for kids.

It all started when I insinuated that folk at EMILY’s List engage in “baby killing.” Apparently that struck a nerve with the EMILY’s List employee. The comment that was left was so absurd, so beyond the pale of normalcy, so made up that I decided to post it below for everyone to see:

anonymous said...
Privacy is a right protected by the constitution. At EMILY's list, we help women running for office that support the right to privacy for women. Killing babies is a crime in the United States, and we do not support anyone who kills babies.

Would everyone that buys this crap please stand up? Bueller? Bueller? Beuller? That’s what thought. Carefeul, don't step in it.

Somewhere between ending pregnancies and losing elections, the left decided to go from “pro-choice” to “supporting the right of privacy for women.” Wow. Whatever helps you sleep at night.

17 Comments:

At 4:52 PM, Blogger Zack said...

I'm sorry, but this post is just plain stupid. Those of us who are pro-choice have ALWAYS said that the reason we support abortion rights is that we support a woman's constitutionaly protected right to privacy. For Christ's sake, that is the heart and sole of Roe v. Wade. This is not a change in position, or even a different sound-byte, its the truth.

 
At 5:47 PM, Blogger GOPWingman said...

Can you tell me where you find "Right to privacy" in the Constitution. Hey! If I have a right to privacy, those police officers have no right to see how fast I'm going on the freeway!

 
At 6:09 PM, Blogger Zack said...

Well, the words "right to privacy" never appear in the constitution. In fact, the word "privacy" never apears at all. According to the Supreme Court, however, the right to privacy lives in the constitution in the 4th and 9th Amendments. The 4th reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In essance, this amendment forces the government to have cause to invade our privacy. The 9th Amendment reads:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The passage flies directly in the face of your argument. You are basically saying that since the Constitution does not explicitly describe a right to privacy, it does not exist. The framers of our Constitution were very worried about people like you. Indeed, many people opposed the Bill of Rights because they thought it would limit, rather than protect, our rights. To prevent this from happening, they inserted the 9th Amendment. The framers viewed the rights described in the first 10 amendments not as an authoritative list, but the most essential rights at the time.

Anyway, do yourself a favor and read Roe.

PS-
When you are driving on the road you are using public property and you forfeit some of your rights. This is why the government can mandate that drivers have a licence, force people to take breathalizers and, yes, "see how fast" you are going on the freeway.

 
At 6:39 PM, Blogger Republican Minnesota said...

To paraphrase Dante: the greatest trick the devil ever pulled was convincing the world that he doesn't exist.

 
At 7:54 PM, Blogger GOPWingman said...

The key phrase is "Against unreasonable SEARCHES and SEIZURES." The only thing the government may be searching and/or seizing would be the person who committed the heinous act.

How about Amendment 10?? It reads, "The powers not delegated to the United States, nor prohibited by it to the States, are reserved for the States respectfully, or to the people."

The right to kill an unborn child was imposed on the U.S. by the Supreme Court on the ground of "right to privacy" which does not exist in the Constitution. This was an issue that should've been left to the states and/or the people to decide as is stated in the Constitution.

 
At 8:34 PM, Blogger Zack said...

The problem with your 10th Amendment argument is that it neglects the 14th Amendment, which reads:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I've already outlined the legal reasoning behind the right to privacy, but I will add that you should think about the full consequences of your argument. Imagine a world in which we do not have a right to privacy. Medical records, credit history, all public. The government could make any number of laws about what you can and can't do in your own home. Or, more directly relevant, the government could make laws about what type of medical proceedures you could have and when. Imagine some future Congress deciding that Kidney dialysis was immoral and should be outlawed. Admittedly an extreme example, but I think you get the point.

By the way, I already conceeded to you that the word "privacy" is not in the Constitution. My argument is that it is implied in other Amendments (most notably the 4th and 9th, but also the 3rd and 5th).

 
At 9:54 PM, Blogger Eightgun said...

Zack, you are much more articulate than the average defender of Roe v. Wade--I will give you that--but I think you have some trouble interpreting and thinking clearly.

For starters, you offer the text, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," as though it were some kind of confrontation of anything any serious opponents of Roe v. Wade have said. It's not. The opponents of Roe v. Wade contend that the constitution does not guarantee a right to privacy, not that a right to privacy does not exist in some abstract and constitutionally irrelevant sense. To maintain seriously that governments ought to respect rights that aren't enumerated in legal documents binding to them is ridiculous.

To say that any collection of amendments you might piece together "implies" a right to privacy strikes me as a very strong overstatement, the reason much weaker words like "emanations" and "penumbras" are often used instead. The phrase "unreasonable searches and seizures," for example, implies that some searches and seizures are, in fact, reasonable. More importantly, what is being searched or seized when a state or federal legislature makes a law against abortion?

As far as the full consequences of the argument are concerned, the non-existence of a Constitutional right to privacy does not in any way prevent government from making various laws to protect people from various kinds of invasion of privacy. Besides, constitutional rights, whether state or federal, do not apply to private entities, only governmental ones. In other words, a Constitutional right to privacy is not what prevents private entities from sharing information about you--other laws and regulations do that.

 
At 6:28 AM, Anonymous Anonymous said...

It was a fucking joke. You called it baby killing as part of your rhetoric. Jesus Christ, I was making an absurdist statement, glad you caught on. I was not the one who brought up abortion; it isn't even a big issue for me. You were the wise-ass that brought up the issue, and I, as a troll, decided to lead you on.

This will be shocking to you: I don't even work for EMILY's List!. I have an EMILY's List IP because I work in the same building and use their open wifi hub. I don't want my boss to know that I'm wasting my time reading your stupid blog and trying to flame war.

Clearly you are completely partisan and you have no sense of humor, so having any sort of enlightened or intelligent conversation with you is out of the question. So, from now on you can have your circle-jerk with the other narrow-minded GOP bloggers, and I’ll leave you alone!

 
At 6:45 AM, Blogger GOPWingman said...

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of LIFE, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I think that statement in the Constitution is pretty loud and clear on the issue at hand.

 
At 8:47 AM, Blogger Zack said...

eightgun,

I presented the 14th Amendment only as a counter to the 10th Amendment claim that gopwingman was presenting. As for your claim that:

"To maintain seriously that governments ought to respect rights that aren't enumerated in legal documents binding to them is ridiculous."

As I indicated earlier, the framers of our Constitution would disagree strongly. Madison and others were concerned about this argument in particular and so they added the 9th Amendment which reads:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Apparently our founding fathers did not find my argument so ridiculous.

As for your claim about the 4th Amendment "searches and seizures" clause, no abortion advocate claims that limits on abortion is an unreasonable search or seizure. Instead, we argue that such a right implies (or creates a penumbra if you prefer) an expectation of privacy, as does the 3rd Amendment prohibition on quatering soldiers in private homes and the 5th Amendment right against self incrimination.

The argument that I was making about the consequences of a lack of a right to privacy wasn't meant to apply to private entities (although, reading my post I can understand why you inferred that). When I was talking about medical histories being public I was invisioning them being used by the government. Let me give you an example. Suppose some future government decided to mandate that everyone's genetic code and dna samples be on file with the government (no right to privacy to protect us from this). My other examples in the previous post still apply.

gopwingman - Eightgun actualy provides the answer to your claim in your latest post. Even if you accept (which I do not) that an abortion represents a denial of life:
"constitutional rights, whether state or federal, do not apply to private entities, only governmental ones."

You argument would only prove that the state may not provide abortions, not that private entities can not.

 
At 11:21 PM, Blogger Eightgun said...

Zack, you are missing my points.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

This sentence does not legally bind any government to recognizing or respecting rights that are not enumerated somewhere in some way. Are you really going to maintain that government has some legal obligation to respect rights that it does not recognize? And how can it recognize rights that have not been enumerated by some legislative body somewhere?

This text provides the basis for legislative bodies at the state or federal level to write into law the recognition of other rights over time. It does not provide judges with an excuse to claim the Constitution guarantees a right it does not identify, which is what you seem to expect us to believe.

If you have some proof that this sentence means something other than what I say it does I'd sure like to see it. No Stare Decisis either. I think for myself. I won't accept anything other than explicitly reasoned proof, and I do not accept Supreme Court decisions as necessarily having any authority beyond the purely legal.

Secondly, I do not accept the court's decision that the Constitution implies a right to privacy. There is a reason ambiguous terms like "penumbras" and "emanations" were employed in the judicial thinking that ran up to Roe v. Wade. The reason is that to claim the Constitution guarantees a right to privacy is to take great liberties with the text. There is no blanket expectation of privacy implied by any amendments you might cite taken singularly or collectively. By "imply" here I mean non-explicitly, but unambiguously asserting. Note the word "unambiguously." I dare anyone to prove that any selection of amendments to the Constitution necessitates the recognition of a blanket right to privacy. It cannot be done. The most you will find is that there are amendments that guarantee certain measures of privacy in certain areas of life under certain circumstances.

If you know how Justice Blackmun came to his decision on Roe v. Wade you know that he consulted extra-legal material extensively. Upholding the constitution was not his primary concern; neither was it the primary concern of Justice Powell. Justice Powell reportedly confided to someone that he made up his mind to strike down abortion laws before he'd found a credible legal rationale.

Judges should not go beyond the text. They should be stick figures. For a judge to say he "believes" or "feels" that a collection of amendments guarantees a certain right is not enough for me and it should not be enough for anyone else either. I demand proof, and so should everyone else, because anytime a judge goes beyond what the text requires (note that "requires" is a very strong, very unambiguous word) he is substituting his own feelings, sentiments, or private judgment for the legislated will of the people.

Lastly, lack of a constitutional right to privacy does not in any way prevent legislatures at the state or federal level from enacting laws to protect privacy. Your claims about consequences seem to me to be inconsequential. Why anyone would trust the protection of his privacy to judicial rulings instead of to the wills of the President and the Congress is a mystery to me.

 
At 10:23 AM, Blogger Zack said...

"This sentence does not legally bind any government to recognizing or respecting rights that are not enumerated somewhere in some way."

Here is the text:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What this text says is that rights cannot be denied simply because they are not listed in the constitution. If you want proof that my argument is what the framers intended, I suggest you read the debates over the Bill of Rights from the First Congress, or check Madison's notes from the Constitutional Convention when the framers explicitly discussed adding a Bill of Rights, but rejected doing so because they thought it would limit, rather than protect rights.

When the first Congress wrote the Bill of Rights, they were not looking to legally protect EVERY right, simply those they found most relevant and, more importantly, most threatened by a new, strong, central government. The framers never imagined a world in which the government could realisticaly infringe upon a person's right to privacy. We lived in an agrarian society in the 18th century and, as Jefferson's writings show, the framers expected our country to stay that way in the future. They did not anticipate the industrial revolution, let alone the information age!

"The most you will find is that there are amendments that guarantee certain measures of privacy in certain areas of life under certain circumstances."

You're right! The framers only protected the right to privacy where they thought it was most threatened, but, in context of the Constitutional Convention and the first Congress, it is clear that they believed in an "unambiguous" right to privacy. Take a moment and think about all the rights you enjoy that are not listed in the constitution: freedom of movement, freedom to choose a profession, etc... If the courts ever faced a legislative challenge to these rights they would have to streach to gleen them from the first 8 amendments, but don't you agree that they live within the Constitution and are essential to the American way of life???

You accuse Blackmun and Powell of starting with a judicial end (overturning abortion laws) and then coming up with the legal reasoning. I think anti-choicers do the same thing. So intent on eliminating legalized abortion, they are willing to throw out not just a right to privacy, but the very concept of implied rights just to acheive that aim. Talk about throwing out the baby with the bath water.

Look, I don't like abortion any more than you do. Its a tragedy, no way around that. But there are other ways to eliminate abortion besides governmental prohibition! Sex education, free access to contraceptives, education in general, all of these have been shown to reduce unwanted pregnancies.

"Lastly, lack of a constitutional right to privacy does not in any way prevent legislatures at the state or federal level from enacting laws to protect privacy."

You miss my point. I'm saying that without a right to privacy, there is nothing to prevent legislatures from passing laws that infringe on my privacy. I'm not going to give more examples, you seem like a thoughtful person who should be able to imagine them on his own.

 
At 12:24 PM, Blogger AJT said...

I learned in one of my political science classes about the issue of the right to privacy. The police have the authority once they stop your vehicle to search your vehicle because it is a mobile device. Also there are more limmitations on search and seizure of a house because a house is not mobile. I think the question that should be asked is unreasonable search and seizure an implied right to privacy or not? Unfortunately we have to live with the decisions of the Supreme Court whether we like their rulings. They have a very difficult job regardless of which side you stand on difficult issues. This discussion clearly demonstrates that struggle.

 
At 2:32 PM, Blogger Eightgun said...

Zack, you are still missing my main point.

"What this text says is that rights cannot be denied simply because they are not listed in the constitution."

I don't disagree, but when disputes about what rights people have arise, how are they to be resolved? When you claim your rights have been violated by some party, public or private, in order for government to rule in your favor it needs to recognize whatever rights you're claiming have been violated. Government can neither protect nor respect a right it doesn't know exists. How do you think this is to be determined? By judge fact-finding missions? Would you really prefer to trust the judgment of judges as to whether or not you possess a right? I much prefer legislative bodies to answer those questions.

I do not concede that any rights "live" in the Constitution. The only Constitutional rights I recognize are those that are explicitly stated and those that necessarily follow from what is explicitly stated. Anything else is a phantom and I will ignore it.

"You miss my point. I'm saying that without a right to privacy, there is nothing to prevent legislatures from passing laws that infringe on my privacy. I'm not going to give more examples, you seem like a thoughtful person who should be able to imagine them on his own."

I don't miss your point; I just don't care. I don't mind legislatures passing laws that might infringe on my privacy in some way.

By the way, I have not stated here how I feel about abortion. I mentioned Blackmun and Powell to point out that the thinking that defined Roe v. Wade is not anything to be proud of--so there should be no argument from eminence. I did not know whether or not you were going to make an argument from eminence, and I was letting you know in advance that I would disregard any such arguments.

The fact that abortions are taking place in this country does not bother me nearly so much as the idea that the Constitution protects a right to abort. I believe it does no such thing. I want questions of abortion rights to be resolved by legislatures.

 
At 4:00 PM, Blogger Zack said...

"Would you really prefer to trust the judgment of judges as to whether or not you possess a right?"

Fundamentally, this is the problem. You think that our rights, as recognized by the government, are finite and the Constitution outlines the limits of these rights. I think (as the framers did as well) that our rights are limitless, and that it is the government’s ability to infringe upon our rights that is limited by the Constitution. Our Constitution does not establish a boundary for government (you may go anywhere but here) it lays out explicitly what government can do (you may go here, but everywhere else is off-limits).

"I do not concede that any rights "live" in the Constitution. The only Constitutional rights I recognize are those that are explicitly stated and those that necessarily follow from what is explicitly stated. Anything else is a phantom and I will ignore it."

As much as I have come to respect your opinions, I have to note that this sentiment is completely at odds with the philosophy of the Constitution and the framers. Remember, they had just thrown off a dictatorial power, they wanted a government that was expressly limited in its ability to infringe on the rights of its citizenry. As I have said before, the argument you are making is precisely why the founders included the 9th Amendment in the Bill of Rights and why Madison thought it was the most important of the amendments!!

"I don't miss your point; I just don't care. I don't mind legislatures passing laws that might infringe on my privacy in some way."

C'mon, you're just not using your imagination. As a conservative, don’t you want the government to stay out of your personal life? Isn’t “small” government a staple of conservative talking points? (I realize you have not said here that you are a conservative, but I checked out your profile and blogs) Let me ask you this, do you think the Congress should have been able to make a law that kept Terri Schiavo alive? Do you think Congress should be able to dictate what you do in your bedroom?

"By the way, I have not stated here how I feel about abortion."

Fair enough, it was an assumption on my part and I apologize.

 
At 7:23 PM, Blogger Eightgun said...

I am afraid, Zack, that you have not accurately stated my position. I do not know whether our rights are finite or infinite. I do not believe they are limited or determined by government. What I certainly do believe is that government cannot be expected to respect or protect rights that it does not know exist. That's very different from believing that they are limited or determined by government. When someone brings a case before a court and says a law violates one of his rights, he has to be able to point to SOMETHING as proof of his having that right, something the court has a reason to respect. If he doesn't do that, how can the courts rule in his favor?

Furthermore, I believe the Constitution does not specify who is to decide what rights are to be recognized. I believe judges should not be the ones to do this--but that's an extra--Constitutional answer to an extra-Constitutional question. I have a morbid fear of professional intellectuals deciding what rights my government will recognize. I trust individuals among them, but I distrust the class. I prefer representatives and senators to professors, lawyers, or judges.

"As much as I have come to respect your opinions, I have to note that this sentiment is completely at odds with the philosophy of the Constitution and the framers."

You haven't demonstrated that to my satisfaction. The gist of my opinions is that we ought to respect the limits of the text our Founding Fathers gave us. We ought to recognize what they did not say as much as what they did say. In other words, we ought not to pretend the Constitution says stuff it doesn't say, that it protects rights it doesn't protect. This particular point is as much a matter of interpretation of the written word as it is a matter of law.

I think our fundamental difference is that I subscribe to a very strict interpretation of law that is very text-centered and text-bound, and you have another method. In interpreting law, our Founding Fathers' historical circumstances are only of interest to me to the degree that they shed light on the literal meaning of the words they wrote. I am an originalist, a literalist, a strict constructionist, in the same school of thought as Justice Scalia or (supposedly) Justice Roberts.

"C'mon, you're just not using your imagination. As a conservative, don't you want the government to stay out of your personal life? Isn't "small" government a staple of conservative talking points? (I realize you have not said here that you are a conservative, but I checked out your profile and blogs) Let me ask you this, do you think the Congress should have been able to make a law that kept Terri Schiavo alive? Do you think Congress should be able to dictate what you do in your bedroom?"

When I stated that I didn't object to "legislatures passing laws that might infringe on my privacy in some way" I was making a very broad statement. Perhaps I did not choose my words as well as I might have. What I should have said is that I don't mind legislatures passing laws that intrude upon my privacy to some degrees, in some areas of my life, in some circumstances. For example, if the government has good reason to suspect me of being a terrorist, I want it to invade my privacy in a big way.

I have arrived at the root of our differences to my own satisfaction and am willing to let this be the end of the debate. If you wish to contend further, I might oblige you but, then again, I might not.

I thank you for this opportunity to exchange views. I rarely encounter people who disagree with me about Roe who are seriously interested in what the Constitution says. Most of the ones I encounter are content to argue from eminence ("The Supreme Court says...") as though that were proof that the Court was right to say what it said. You and I have differing interpretations, but at least we are both interpreting for ourselves.

 
At 7:22 PM, Blogger Lucy N said...

Dear anonymous "troll" --
Glad to hear you are using Emily's List's Wifi connection. At least someone is getting something useful out of that bunch of whiny nutbags.

 

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