Tuesday, July 17, 2018

Yet Another Note On The Right Of Privacy And Why Roe v Wade Is Defensible Law


Another question from an interested Canadian layman:

To my brilliant U.S. friends who’ve taken con law or to anyone who knows or has a theory: is there a difference between a constitutional right and a constitutionally protected right?

So (say) the right to bear arms, such as it is, or the 1st Am rights, freedoms and liberties are explicit or express constitutional rights. 

But what about the right to do anything not explicit or expressed in the Constitution that you simply want to do that the state can’t proscribe without adequate justification?

If the American Constitution at the times of its ratification and of the adoption of the Bill of Rights secures the individual rights “we the people” had then at common law and the inalienable rights the Declaration of Independence gives voice to, which the government is created to secure:

....The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.... 


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

then aren’t, quoting the 9th Amendment, those “others”—which the fact of enumerated rights isn’t to be construed to disparage or deny—constitutionally protected rights?

The reason I ask yet again (in my unflagging effort to try to vindicate the constitutional law reasoning—as separate from the result—of Roe v Wade against the across the board conventional pillaging it gets from left and right) is this:

as I just bracketed, I want to try to get at the principle of constitutional law that makes it clear that there *is* a right of privacy that the U.S. Constitution protects, the existence of which poses a question of a different order than does the question of when fetal life begins such that the state is right to intervene to protect it.

(I understand that I may have garbled and distorted the bits and pieces I use to cobble my questions together. 

I’ll obligingly and happily receive any clarifying and correcting instruction: after all, getting straightened out is part of my pursuit of happiness.)

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