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Jill has been blogging for Feministe since 2005.
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24 Responses

  1. Dreamweasel
    Dreamweasel October 16, 2008 at 1:21 pm |

    I too was surprised that Roe V. Wade wasn’t even mentioned until the end of the fourth debate. Thank the Wall Street crash, I guess… most of the divisive social issues (God, gays, guns) have been downplayed this time around.

    McCain basically said that any judge who would support Roe v. Wade has an inferior understanding of Constitutional law, pretty much by definition. That’s almost as absurd as his claim that people who demand that nuclear power be “safe” are just loony environmental extremists.

  2. The Raving Atheist
    The Raving Atheist October 16, 2008 at 1:44 pm |

    And it’s true that nowhere in the Constitution does it say that you have a right to privacy

    The problem with Roe is that it set up an absurd trimester-based scheme that was so obviously a legislative function, and pretended that it was not deciding when life begins although it basically picked viability as the point. It wasn’t making some grand, universal point about fundamental freedoms or privacy. It if were, it would have abolished state regulation of abortion altogether

  3. Fuzz
    Fuzz October 16, 2008 at 2:06 pm |

    The literal interpretation of the constitution has got to be the most egregious example of an idea whose public acceptance and respectability is totally out of kilter with its merits. I’ve never heard a good response from a conservative to this: The constitution makes the President the Commander-in-Chief of the US Army and Navy. Every President for the better part of a century, however, has also acted as Commander-in-Chief of the US Air Force and Marines. The constitution makes no mention of an air force, for obvious reasons. Under a literal interpretation of the constitution, POTUS is acting illegally when he orders the Air Force. This is, of course, ridiculous, and highlights the ridiculousness of literally interpreting a very short 220 year old document.

    Why members of the nation’s highest court promote it as the only legitimate approach is absolutely mindboggling.

  4. ElleBeMe
    ElleBeMe October 16, 2008 at 2:25 pm |

    “Why members of the nation’s highest court promote it as the only legitimate approach is absolutely mindboggling.”

    Well, it isn’t if you consider the fact that these very conservative judges ALSO happen to be extremely religious – following LITERAL interpretations of the Bible or what their church tells them.

    It is no wonder why they are so favored amongst the religious right – they are dispensing law, as if they are dispensing advice from the bible/church. God’s work…..

  5. aighmeigh
    aighmeigh October 16, 2008 at 3:16 pm |

    As Obama pointed out last night, this isn’t a question about “state’s rights,” it’s a question about fundamental freedoms and our rights as human beings and as citizens. And questions as fundamental as that of privacy and bodily integrity should not be turned to the states to regulate and restrict as they see fit.

    I couldn’t agree more.

    When will the regulation of the private decisions women are and are not allowed to make for themselves end? Where will it stop? I don’t think they’ll be happy until we’re all living in a country where women can be criminally prosecuted for mere evidence of a past abortion.

    Yes, I know it’s a slippery slope and people will likely say, “How can you use a developing country as an example?!” but I can’t help but think it’s not that far off.

  6. Angela
    Angela October 16, 2008 at 3:18 pm |

    Actually Fuzz, the Marine Corps is a component of the Department of the Navy. Originally organized as the Continental Marines on November 10, 1775 as naval infantry, the Marine Corps has evolved in its mission with changing military doctrine and American foreign policy. The Marine Corps has served in every American armed conflict and attained prominence in the 20th century when its theories and practice of amphibious warfare proved prescient and ultimately formed the cornerstone of the Pacific campaign of World War II.

    The Air Force was initially born as the United States Army Air Corps, the USAF was formed as a separate branch of the military on September 18, 1947. It was the last branch of the U.S. military to be formed.

    So the POTUS is not acting “illegally”.

  7. Angela
    Angela October 16, 2008 at 3:32 pm |

    ElleBeMe, I disagree. Everyone on the Supreme Court is a pure jurist. The only difference between them is how they interpret what the founding fathers intended what the Constitution meant without destroying the integrity of the law. No religion or ideology plays a part.

  8. ElleBeMe
    ElleBeMe October 16, 2008 at 3:42 pm |

    “ElleBeMe, I disagree. Everyone on the Supreme Court is a pure jurist. The only difference between them is how they interpret what the founding fathers intended what the Constitution meant without destroying the integrity of the law. No religion or ideology plays a part.”

    No ideology or religion plays a part? Are you so sure? If their religion or views had NO bearing why then choose such reactionary, religious justices who have records of following/supporting conservative policies?

    One thing I remember well from Grad school is that EVERYONE is biased, and like minds seek out other like minded people. It’s why a democratic president would have never nominated an Alito or Roberts. They are ALL picked for their views and how they may interpret down the line.

    In an ideal world what you claim waould be the rule. But we don’t live there.

  9. Koren
    Koren October 16, 2008 at 3:43 pm |

    I could go into a deep analysis of the constitution’s implied right to privacy — but I don’t feel like it.

    John McCain is out of touch. with women. mainstream Americans. the middle class. He just doesn’t get it. Maybe it’s because he’s been in Congress and never on the front lines. Maybe it’s because he’s wealthy. I don’t know. What I do know is that my jaw dropped at his dismissal of women’s health as if it is a secondary thought to being a baby factory. What’s even more frustrating is the deafening silence of this statement on mainstream, “elite liberal” news outlets.

    As a woman, that was the most shocking and scary part of the debate.

  10. Lizzie (greeneyed fem)
    Lizzie (greeneyed fem) October 16, 2008 at 3:44 pm |

    The first video is no longer available. Can someone give a quick description?

  11. aproustian
    aproustian October 16, 2008 at 3:45 pm |

    Angela: No religion or ideology plays a part.

    Seriously? Then how do they decide how to interpret the intentions of the founding fathers? If religion and ideology play no part, why are the decisions so often split down the same lines, the same justices voting in the same ways?

  12. Angela
    Angela October 16, 2008 at 3:51 pm |

    Aighmeigh, what you listened to from Obama was nothing but “lawyerspeak”. The “fundamental right” to privacy is not a part of the Constitution. The current privacy laws on the books are acts of Congress which were passed into law. But like a good little lawyer, Obama isn’t going to tell you that in order to make “privacy” a right, Congress must agree to ratify (amend) the Constitution.

  13. Cara
    Cara October 16, 2008 at 3:57 pm |

    The “fundamental right” to privacy is not a part of the Constitution.

    Very good, the word “privacy” is not in there. However, the issue of privacy is discussed in numerous amendments and many of us believe that the various specific kind of privacy protected under the Constitution — privacy from unwarranted government search and seizure, privacy of religion, privacy from forced housing of troops, etc. — points to an overall understanding that privacy is indeed a right. Also, see the 9th amendment — the Constitution explicitly says that just because a certain word doesn’t appear in it, that doesn’t mean the fundamental right in question does not exist.

  14. Angela
    Angela October 16, 2008 at 4:07 pm |

    Jill, ElleBeMe,

    Yes, I do believe that. Also Elle, you are correct to say a lot of folks are biased, however, when the justices hand down different opinions or dissents regarding a court decision, they speak as one.

    Aproustian, it’s not about religion, it’s about interpretation. For the justices, it’s a matter of keeping the overall scope of the Constitution’s foundation in its truest form. The split you speak of comes from whether or not the Constitution’s focus should change to meet the current times or do they keep it as is.

    In other words: is the Constitution considered a living or dead document?

  15. Angela
    Angela October 16, 2008 at 4:29 pm |

    Cara, the Ninth Amendment to the U.S. Constitution is somewhat of an enigma. It provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named. Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.

  16. Koren
    Koren October 16, 2008 at 4:35 pm |

    Angela . . .

    1. Barack is not a “little” lawyer — he’s a lawyer and Con Law Scholar.

    2. SCOTUS has long recognized that there exists an “implied” right to privacy Thus the Constitution implicitly protects our right to privacy. This implication arises from a review of our enumerated/fundamental rights as outlined in the following amendments: 1A, 2A, 4A, 5A. Since SCOTUS has recognized this right, they would need to now denounce it in order for the right to go away.

    3. In reaching this conclusion and many others, I believe, as many other lawyers and jurists do, that the justices were doing their job-as delegated to them via the Framers- in interpreting the constitution. a decision needs to be made that the USC hasn’t specifically dicussed, it is left to interpretation.

    4. The Constitution is a living document. The framers weren’t capable of predicting the future and there are many ambiguities. The Constitution is given life by the scholars and jurists that address modern questions arising from the constition.

  17. ElleBeMe
    ElleBeMe October 16, 2008 at 4:36 pm |

    “And how do you separate ideology from interpretation?”

    I would sure like to know…

    Just for examples sake:

    YOu have an Holocaust historian who uses facts and data from that time to conclude the Holocaust did happen and was a human tragedy.

    You have a Holocaust revisionist historian as well who uses the same facts, but deduces that the Holocaust in fact didn’t happen, and was not a human tragedy, but rather a lie.

    In both cases, the same facts are used, but different conclusions are drawn based upon their interpretations and ideologies.

    In the case of the SCOTUS, it is no different. The Justices may have an exemplary knowledge of the law and the constitution – but they are chosen on how they interpret that law to further promote or uphold an agenda. You *cannot* separate ideology and interpretation if working within the same constructs!

  18. Angela
    Angela October 16, 2008 at 4:51 pm |

    Jill, I reviewed the Gonzales v. Raich case and the stance the justices had (IMO) was not ideological at all. Majority opinion (liberal and moderate) in that case was delivered by Stevens and joined by Kennedy, Souter, Ginsburg, and Breyer. Justice Scalia’s issued a separate concurrence. The dissenting opinions were delivered by O’Connor (liberal), who was joined by Rehnquist (Moderate) and partially joined by Thomas. Justice Thomas also wrote a separate dissent.

    It was about the law and nothing more. As for William Douglas, he still interpreted the law, regardless of his personal views. I think Roe vs. Wade is a bad law (not for religious reasons, but because is was poorly written to begin with), but that does not mean I’m in favor of it being overturned either.

  19. Rebecca
    Rebecca October 16, 2008 at 5:23 pm |

    Angela, no, the Ninth Amendment doesn’t specify which unspecified rights it protects. That’s kind of the point.

  20. ACG
    ACG October 16, 2008 at 5:44 pm |

    Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.

    Thus the entire point of the Ninth Amendment. Well grasped.

    9A was included in the Bill of Rights as assurance that the government wouldn’t try to infringe on the people’s unenumerated rights with the excuse, “Well, the Constitution doesn’t say you have the right to do that.” 9A is the framers’ way of saying that the Constitution doesn’t grant rights to the government but, conversely, limits the government to the rights listed. All other rights are reserved for the people until someone can adequately convince the legislature that there’s a good reason to take them away.

    So, yeah, until Congress passes an amendment saying, “The government reserves the right to take up residence in ACG’s uterus and regulate all intercervical traffic,” the Ninth Amendment protects my right to not have them in there.

  21. Rori Raye
    Rori Raye October 17, 2008 at 1:59 am |

    Koran, I am always so shocked, shaken to my core by humankind’s indecency. The way we treat animals, the way we treat our food sources, the way we treat the ill, the elderly, the damaged, the wounded…and yet we are so self-righteous and opinionated. As though we can BE good just by saying we are. We women – though so many of us are just as responsible as men for the negligence of compassion and right-thinking across the board while still giving lip-service to it – hold the keys to life, to consciousness, to birth and rebirth. And as soon as we are able to wake up en mass and take this power we so already HAVE, and stand up for ourselves as the keepers of our own bodies and the keepers of the beings we can create inside us, and enforce our privacy and expand decency and equality and compassion and indifference to human and animal differences throughout our world – things will change. I believe the tide is generational, and that it’s about to turn. Thank you for the brilliant legal explanations – very helpful and eye-opening. Rori

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