The purely constitutional aspects of Roe v. Wade
Posted by John T. Reed on
Roe v. Wade says abortion is legal because of a woman’s constitutional right of privacy.
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This post is strictly about the law, not morality or women or any of that.
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There is no constitutional right of privacy. The right of privacy was invented in 1890, 111 years after the Constitution.
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‘In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled "The Right to Privacy," is often cited as the first explicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the "right to be let alone", and focused on protecting individuals.‘
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This sounds like a common law, not the Constitution. I would support a Constitutional Amendment creating a right of privacy. I think most Americans would and it would be ratified by 3/4 of the states as required. But until there is such an amendment, there is no right of privacy.
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However, such an amendment would have nothing to do with abortion. It would not be ratified because of pro-abortion people hijacking it to make sure it included abortion.
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Even liberal lawyers admit that there is no constitutional right to privacy nor any right of abortion through a right of privacy. Here is the Wikipedia on that:
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‘Roe was criticized by some in the legal community,[8] with the decision being seen as a form of judicial activism.[9] In a 1973 article in the Yale Law Journal,[8][9] the American legal scholar John Hart Ely criticized Roe as a decision that "is not constitutional law and gives almost no sense of an obligation to try to be."[10] Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."‘
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So again, this post is purely about law, not the morality of abortion. There is no constitutional right to an abortion. In Roe v. Wade, SCOTUS simply chose the result it wanted and lied about the Constitutional authority for it.
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If you want a constitutional right to an abortion, write an amendment and get it ratified by 3/4 of the states. You will not get that. That means it will go to the states and some will say yes and some will say no. Fine. So a woman who wants to get an abortion can go to a state where they are legal. They can also try to persuade anti-abortion states to switch.
.
But that’s it. The pro-abortion movement is really only about forcing red states to adopt blue voters’ preference on the subject. The Constitution says the way you treat that is each state has its own law.
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The Constitution does NOT say that the voters of California and New York canforce the voters of AL and MO etc. to adopt the abortion law that CA and NY people want. I do not understand the endless tantrum about Roe v. Wade. SCOTUS did not help by handing down that decision. Now the pro-abortion people are spoiled and essentially want a bad SCOTUS decision to, in effect, amend the Constitution by treating stare decisis (precedent decides) as trumping the words of the Constitution. A bad decisions does NOT do that as was amply demonstrated in cases like Plessy v. Ferguson (segregation okay), Dred Scott v. Sanford (slavery okay), Korematsu v. U.S. (internment of Japanese-Americans during WW II). Liberals like stare decisis if the stare in question is Roe V. Wade. Otherwise, they have not use for it.
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Conservatives also want to prevent abortions in states like CA and NY. That is just as wrong. The only thing the Constitution says about abortion is the Xth Amendment which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The regulation of abortion is not delegated in the Constitution, therefore the Constitution says the states will decide and the people on each side can try to persuade each state but when they lose, they lose. Demanding SCOTUS set abortion law nationwide repeals the Xth Amendment. But that is not constitutional either. If you want to repeal the Xth Amendment, you need to get 3/4 of the states to ratify it.
.
That is the law. If you don’t get your way, you accept it or leave the country. Roe v. Wade was wrong, like Plessy, Dred Scott, and Korematsu. Read the Constitution and abide by it as all U.S. residents must.
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Kirsten Gillibrand said if elected president, she will codify Roe Wade.
.
Say what? She is a graduate of UCLA law school. In other words, she well knows that codifying Roe v. Wade is a nonsense statement. She assumes, as apparently all politicians do that her constituents are too ignorant to know she is spouting nonsense. She also figures when I or others point out the nonsense, her constituents will still believe her.
.
Codify means to put the Roe v. Wade decision into the United States Code (all federal laws). The Constitution is the first statute in the United States Code. Furthermore, codifying a Supreme Court decision is redundant. The Constitution says that ambiguities in the wording of any law are resolved by SCOTUS decisions.
.
If Gillibrand were President, she could not codify anything until each House of Congress passed, in which case she could sign it into law. At present, It probably would not pass the Senate.
.
Gillibrand implies that she will strengthen Roe V. Wade making it harder to overturn. Fine. I just explained how to do that above. And what is the constitutional role of the President with regard to amendments? Zero. Zip. Nada. The President is purely a mere spectator in the amendment process. So if Gillibrand is elected president, she can do no more than applaud efforts to amend the Constitution. In other words, her vow to codify Roe v. Wade if elected was nothing but bullshit.
.
This post is strictly about the law, not morality or women or any of that.
.
There is no constitutional right of privacy. The right of privacy was invented in 1890, 111 years after the Constitution.
.
‘In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled "The Right to Privacy," is often cited as the first explicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the "right to be let alone", and focused on protecting individuals.‘
.
This sounds like a common law, not the Constitution. I would support a Constitutional Amendment creating a right of privacy. I think most Americans would and it would be ratified by 3/4 of the states as required. But until there is such an amendment, there is no right of privacy.
.
However, such an amendment would have nothing to do with abortion. It would not be ratified because of pro-abortion people hijacking it to make sure it included abortion.
.
Even liberal lawyers admit that there is no constitutional right to privacy nor any right of abortion through a right of privacy. Here is the Wikipedia on that:
.
‘Roe was criticized by some in the legal community,[8] with the decision being seen as a form of judicial activism.[9] In a 1973 article in the Yale Law Journal,[8][9] the American legal scholar John Hart Ely criticized Roe as a decision that "is not constitutional law and gives almost no sense of an obligation to try to be."[10] Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."‘
.
So again, this post is purely about law, not the morality of abortion. There is no constitutional right to an abortion. In Roe v. Wade, SCOTUS simply chose the result it wanted and lied about the Constitutional authority for it.
.
If you want a constitutional right to an abortion, write an amendment and get it ratified by 3/4 of the states. You will not get that. That means it will go to the states and some will say yes and some will say no. Fine. So a woman who wants to get an abortion can go to a state where they are legal. They can also try to persuade anti-abortion states to switch.
.
But that’s it. The pro-abortion movement is really only about forcing red states to adopt blue voters’ preference on the subject. The Constitution says the way you treat that is each state has its own law.
.
The Constitution does NOT say that the voters of California and New York canforce the voters of AL and MO etc. to adopt the abortion law that CA and NY people want. I do not understand the endless tantrum about Roe v. Wade. SCOTUS did not help by handing down that decision. Now the pro-abortion people are spoiled and essentially want a bad SCOTUS decision to, in effect, amend the Constitution by treating stare decisis (precedent decides) as trumping the words of the Constitution. A bad decisions does NOT do that as was amply demonstrated in cases like Plessy v. Ferguson (segregation okay), Dred Scott v. Sanford (slavery okay), Korematsu v. U.S. (internment of Japanese-Americans during WW II). Liberals like stare decisis if the stare in question is Roe V. Wade. Otherwise, they have not use for it.
.
Conservatives also want to prevent abortions in states like CA and NY. That is just as wrong. The only thing the Constitution says about abortion is the Xth Amendment which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The regulation of abortion is not delegated in the Constitution, therefore the Constitution says the states will decide and the people on each side can try to persuade each state but when they lose, they lose. Demanding SCOTUS set abortion law nationwide repeals the Xth Amendment. But that is not constitutional either. If you want to repeal the Xth Amendment, you need to get 3/4 of the states to ratify it.
.
That is the law. If you don’t get your way, you accept it or leave the country. Roe v. Wade was wrong, like Plessy, Dred Scott, and Korematsu. Read the Constitution and abide by it as all U.S. residents must.
.
Kirsten Gillibrand said if elected president, she will codify Roe Wade.
.
Say what? She is a graduate of UCLA law school. In other words, she well knows that codifying Roe v. Wade is a nonsense statement. She assumes, as apparently all politicians do that her constituents are too ignorant to know she is spouting nonsense. She also figures when I or others point out the nonsense, her constituents will still believe her.
.
Codify means to put the Roe v. Wade decision into the United States Code (all federal laws). The Constitution is the first statute in the United States Code. Furthermore, codifying a Supreme Court decision is redundant. The Constitution says that ambiguities in the wording of any law are resolved by SCOTUS decisions.
.
If Gillibrand were President, she could not codify anything until each House of Congress passed, in which case she could sign it into law. At present, It probably would not pass the Senate.
.
Gillibrand implies that she will strengthen Roe V. Wade making it harder to overturn. Fine. I just explained how to do that above. And what is the constitutional role of the President with regard to amendments? Zero. Zip. Nada. The President is purely a mere spectator in the amendment process. So if Gillibrand is elected president, she can do no more than applaud efforts to amend the Constitution. In other words, her vow to codify Roe v. Wade if elected was nothing but bullshit.
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