"The Constitution doesn't grant negative liberty. The Constitution limits federal intereference into liberty based on various considerations. Saying that the federal government can regulate actions taken by the state is not to say that the federal government can require that an action exist in a state unless the action has a constitutional basis, e.g. voting."This further explanation nullifies -- or at least takes into consideration Bellman's objection of dios' writing. The objections he brings are all constitutional in nature, and fall into the exception that dios outlined.
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.Justice Blackmun's opinion echoes that prohibitive language, when he writes: "Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Justice Blackmun is not requiring the states to do anything; instead, he is prohibiting the states from regulating unless the regulation passes constitutional muster.
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 the enumeration; and it might follow by implication, that those rights that were not placed in that enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and where consequently insecure.So, [expletive deleted], sorry about length, but does that answer your question?
Rights to reproductive autonomy are deeply embedded in the American constitutional tradition, appearing within many decades of constitutional state and federal doctrine. (David Garrow's Liberty & Sexuality provides an excellent account.) The core are three bedrock cases--Meyer, Skinner, and Griswold--that were supported by a cross-ideological spectrum of justices and are well-settled. There is simply no question that procreative autonomy is a fundamental right in the American constitutional tradition; the only question is whether it applies to abortion....Additionally, Roe only explicitly prohibits the regulation of first-trimester abortion -- and as far as I'm aware there's not yet a "debate" about the legal status of a first-trimester fetus. Just because White invokes that hypothetical controversy doesn't mean it's real -- he could also say that Roe prevents the states from having a meaningful debate about whether fetuses are in fact hyperintelligent fantasy beings from 2001. After all, we surely wouldn't want to anger the overlords who planted the monoliths, right? --Not what I'd call a "damning argument," esp. considering that it's not relevant to the question Roe was asking nor the laws it overturned, which by and large weren't couched in fetal rights. Find a new idol.
While there is no explicit right to "privacy" or "procreative autonomy" in so many words, it is clearly implied by the language of the Bill of Rights and the 14th Amendment. Now, of course, one can disagree with the application of structuralist reasoning in a particular case, or subscribe to a different grand theory. But to pretend that this interpretive method was invented by William Douglas in 1965, or is generally discredited, is absolutely ridiculous.
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/pre-empting any nastiness
posted by Faint of Butt at 8:13 AM on October 17, 2005