(12-02-2021 02:06 PM)RiceLad15 Wrote:  

(12-02-2021 12:47 PM)tanqtonic Wrote:  

(12-02-2021 11:10 AM)Hambone10 Wrote:  

(12-01-2021 07:58 PM)tanqtonic Wrote:  I’m generally not opposed to abortion.

My issue is that in RVW the Court found not just a right, but a fundamental right apparently out of thin air.

I get that, but its been that way for 50+ years now...

For me, I don't see that they found a right... although the verbiage may say so... I'm not as used to the language as you are. The way it reads to me... I see that they recognized the right of the state to regulate people. It seems somewhat inherent that because they didn't specifically give the government the right to regulate such things, that such rights reside with the people or the states... so RVW does seem consistent with that to me.

The explicit language in Roe, and later in Casey, says that a fundamental right exists. That is, there are Constitutional ramifications to the regulation of abortion.

You step over a line, and insto-presto a 'right' governs the action. Not just a federal law, or regulation, but a *right*. That is, they curtailed to a great extent the means and manner a state may regulate.

Quote: It seems somewhat inherent that because they didn't specifically give the government the right to regulate such things,

You hit upon the idea of a right in this passage. In our system, a 'right' is a line beyond which that a government (any government, federal, state, county, precinct) cannot regulate. When a 'rights' floor is breached by government regulation, the concept of 'negative powers' (which defines rights) requires that that regulation falls.

Anything that a government does that doesnt breach that line a government can regulate. The proper definition is that a government has the power to regulate (as a first course), UNLESS a right is broached (or unless the government oversteps the lines on subject matter that they are empowered to act on, which is a completely different set of issues dealing with a government of defined and limited powers).

For example, in the absence of a 2nd Amendment, a government is unrestricted in what it can do regulate firearms --- even to the point of banning. With a right in place, there is a floor of basic things that a government may not regulate.

So, in terms of abortion, the courts have said there is a Constitutional level that a government cannot do in the regulation of abortion. And, as Thomas pointed out the other day in arguments -- in this case no one can say where that right to be free of government intervention is empowered for people within the Constitution, nor exactly what it is.

That is not to say that allowing early abortion is a bad idea --- but a 'good idea' does not mean a Constitutional right that the limits are protected from governmental regulation.

Nor does the concept of a 'bad idea' mean that that something should be unconstitutional. Take as example Scalia's comment in Bowers v. Hardwick, a Texas case that a cornerstone of the 'rights theory creation' for progressive thought. In that case, there was a Texas law that criminalized anal sex ---- both heterosexual and homosexual. In short, a really stupid law, a really bad law.

Scalia noted, that the law was stupid, and bad. But, being stupid, and bad did not rise to the level of a implied fundamental right to anal sex, nor did it rise to being unconstitutional.

Does that Bowers case hinge on the similar argument (if I understand it correctly), that a right to privacy exists in the Constitution, but is not explicitly granted?

Both Bowers and Lawrence were so-to speak 'right to privacy' cases, albeit the nomenclature is not very precise.

Given that the 'right to privacy' is a strictly judicial construct, the boundaries of it range from selling condoms, homosexual marriage, fundamental right to anal sex, and abortion rights. But apparently not prostitution nor non-monogamous marriage.

I have never seen a very well reasoned nor nor articulated description of what this judicially created fundamental right actually entails, that is aside from screeching protesters yelling about how fundamental it is to life and ordered liberty overall.

Quick question, how is a fundamental right to homosexual marriage affect anything in a realm of 'privacy'? Seems to me that a homosexual marriage (or a heterosexual marriage, or a polygamous marriage) are not affairs subject to a 'privacy' issue (when one uses the term 'privacy in its normal, ordinary sense).