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amigo_boy
join:2005-07-22
Tempe, AZ
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| reply to jdjbuffalo
Re: Let's get this out of the way...
said by jdjbuffalo  :but the fundamental rights which make up privacy are as old as time. That's what the Supreme Court said. (Google for Griswold v. Connecticut.). They found it in the "penumbras" (the shadows or margins) of the Constitution. It was used to overturn a State ban on contraception, and later legalization of abortion.
The Court's language asserts that privacy is not explicitly protected by the Constitution. And, this was a landmark ruling. Therefore, it's correct to say that a right to privacy is relatively new (at least as far as the government reconizing it). And, it is true to say that this recognition wouldn't have occurred if the Court hadn't begun the process of "selective incorporation" in the 1920s. Prior to this, the Bill of Rights was only a bar against Congress. States regularly infringed explicitely enumerated rights, not just those in the margins.
If you want to argue a libertarian point of view that rights are preexistant, that's fine with me. But, the Supreme court didn't recognize this one until the 1960s. Making it, for all practical purposes "relatively new." And the result of a vastly larger expansion of rights that began in the 1920s (or, vastly larger and intrusive government, considering the power over the states that this implied.).
Mark | |
jdjbuffalo
join:2004-01-17
Denver, CO
| Thanks, interesting Supreme Court case. I've always wondered which one did that (I knew that it was a USSC case that defined privacy in the context of the Constitution but never researched which one).
Personally, I think that it couldn't be clearer than what it says in the Constitution "The right of the people to be secure in their persons, houses, papers, and effects" which sounds exactly like privacy but obviously my interpretation is different than the USSC.
This is one of many reasons we are in dire need of several new amendments to the constitution. | |
amigo_boy
join:2005-07-22
Tempe, AZ
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| said by jdjbuffalo :Personally, I think that it couldn't be clearer than what it says in the Constitution " The right of the people to be secure in their persons, houses, papers, and effects" which sounds exactly like privacy but obviously my interpretation is different than the USSC. I think the difference is whether something is justifiably illegal (making you subject to searches and seizures), or unjustifiably illegal because of your privacy interests. Griswold was the first time the Court legalized something based upon a right to privacy. A *very narrow* finding. The Court hasn't legalized possession of automatic weapons, marijuana or pirate radio based upon a right to privacy. You're only protected in the pursuit of enforcing those law.
They justified their decision the same way you did (it's implicit). But, this is one of those win/lose propositions. People affected by state bans of contraception came out winners. But, states came out losers. This was another precedent in the Court's 40-year "selective incorporation" which dramatically altered the Federal/State relationship, putting state action under federal scrutiny.
Like anything, it's had it's good and bad points. Power is power. Do you want the state to be supreme (and legalize racial segregation with no recourse above the state?). Or, a federation of states (a larger collective standard) that has the same chance of imposing looney social standards? It's all mob rule. In some cases there's safety in larger numbers. In other cases it would have been better to be a smaller group, protected from the larger mob.
If the recent (legal) standard for a privacy right interests you, google for "selective incorporation." The 14th Amendment (and it being taken seriously 50 years later, long after it was intended to solve a problem) is an interesting topic. It's amazing how the Supreme Court can go 50 years (and 5,000 lynchings), then with a straight face say, "hey, I just realized the framers of the 14th amendment intended the bill of rights to be applicable to the states..."
Mark | |
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