Saturday, July 21, 2018

An Exchange On Privacy As A Necessary Condition Of Liberty And Roe v Wade

Part of an exchange on my view, linked to, that Roe v Wade is rightly decided in that the privacy is a constitutionally protected right since it’s a necessary condition of liberty, all pitched on the assumption—affirmed by SCOTUS case law—-that constitutionally protected life doesn’t start at the moment of conception.

What I wrote that my friend answered is linked to.

My Friend:

.... I agree with your conclusion but think that  what you wrote raises three questions:

1) Are you saying that privacy is a right protected by the Constitution the way freedom of speech or freedom of religion is? If so the consequence would be that a State could make no law infringing it.

2) If you are saying that privacy is part of the general liberty that is protected by the Constitution, the Constitution does not absolutely guarantee all liberty but does guarantee one will not be deprived of it without due process. I think what you are saying is that a law infringing privacy cannot be justified under the due process clause but here the issue of when life begins may be relevant, as a State’s interest in infringing a person’s privacy right might be considered differently if it is to protect life that has begun.

3) Your argument is a rejection of the originalist approach that since the authors of the 14th amendment did not think it prevented States from prohibiting abortion, it cannot be interpreted to mean that...


.... Thanks for the thoughtful response.

If you agree with my conclusion, what in a nutshell is your reasoning?

1. I’m saying that I think it’s a fair proposition to say that the Constitution protects citizens’ liberty regardless of the wording of the Section 1 of the 14th Amendment. So that, on that general understanding, the state can’t prohibit any act  without justification. So, assuming protected life doesn’t start at conception but some time thereafter, for the before-time the state would have no greater right to forbid an abortion than it would have to forbid liposuction or preventatively having your appendix out or tattoos or getting them removed. I think that autonomy in thought and action short of harm comes within natural rights, is an aspect of liberty and comprises any common sense understanding of privacy. So in precise answer to your question, it’s not an express right like speech. 

2. I agree 100% with your second point. Absolutely the argument from liberty or privacy within liberty bows to protected life. When protected life begins is one totally fundamental line of argument; and if it begins at conception, then privacy is either irrelevant to the analysis or it weighs less than the life to be protected on the constitutional balancing scales.

3. Your third point raises an interesting issue from the standpoint of originalism and it may present another hole in it apart from your good point, made before, about evolving or changing facts or understandings of facts. Your example then was solitary confinement, assuming we latterly learn it’s individually utterly devastating. The issue, as I have it, isn’t what the authors meant as such as what was the then communicative content of the textual legal words as evident in their public use. But what happens if the word used, say liberty, must be understood logically by its necessary and sufficient conditions, just as I say privacy is a necessary condition of liberty, or is necessarily latent in it? Originalism, as I understand it, isn’t committed to “penumbras and emanations;” but what happens if judicial attention turns to what is necessarily implicit in the legal word used, as may be the case with privacy within liberty in Section (1) of the 14th Amendment? I think originalism has to step aside or modify itself....

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