The right to privacy, the right to marry, to send your children to private schools, to live together with your family members. What do all these things have in common. They aren't in the Constitution, not in the words of it anyway.
What the Supreme Court currently says, is that the due process clause protects fundamental rights. But how does that work? How do you know if a right is fundamental? Well, being listed in the Constitution is a pretty good hint. So, there's a due process clause in the 14th Amendment, which talks about the states.
Amendment 14:
“...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws....”
And one thing that clause does, is to take the Bill of Rights, almost all of it, and allow you to assert those rights against the states. The original Bill of Rights only gave you rights against the federal government.
This is a major change in the Constitution from the original version, and we’ve been living under this constitution only since the time of the Reconstruction Amendments, Nos. 13, 14, and 15. But almost all of the cases that come before the SCOTUS today are 14th Amendment cases against the states. Brown v Board of education, Roe v Wade, Griswold v Connecticut, Cantwell v Connecticut, Loving v Virginia. Those cases could not have been heard under the original constitution. They’re all 14th Amendment questions.
Due process is about procedure, some people say. It's about how the government goes about doing things. But these are substantive rights. They're about what the government can and can't do, not about how.
The 14th Amendment gives three different kinds of protection.
It says:
states can't take away life, liberty, or property without due process, that's the due process clause, and
that they can't deny people equal protection.
But there's another clause that people don't talk about so much. It says “...no state shall make or enforce any law that abridges the privileges or immunities of citizens of the United States...”
As it is a recognized unenumerated right under the 9th Amendment, how exactly can the Supreme Court overturn Roe which is a recognized right protected by the 14th Amendment without undoing a part of the Constitution itself? The Supreme Court can’t undo any part of the Constitution and the 14th Amendment is definitely part of the Constitution.
This privileges or immunities clause probably sounds pretty important to you, it probably sounds like it does protect some substantive rights. Privileges or immunities is a pretty good way of describing rights, better than due process, anyway. And there's pretty good historical evidence that the reconstruction Congress, the people who wrote the privileges or immunities clause did intend it to protect some rights, including the Bill of Rights provisions. But the Supreme Court said no. In a case decided soon after the Civil War, it said that the privileges or immunities clause means basically nothing. And ever since then, despite arguments from a lot of different people, from a lot of different political perspectives, the clause has been dead words. The Supreme Court isn't willing to look back and consider whether it made a mistake, even though most people, liberals and conservatives alike, think it did.
Now, one reason the Court hasn't done that, is that it's doing basically the same thing, it's protecting basically the same rights, under the due process clause. So maybe it doesn't matter all that much now, except the Supreme Court could just say it's the Privileges and Immunities Clause that protects these rights. But substantive due process also protects other things. The right to use contraception, for instance. The right to abortion. The right to have children if you want, and to be recognized as their parent. These aren't in the Bill of Rights or anywhere else in the Constitution. So now there's another question. Where do those rights come from? The Supreme Court has never really answered that. But it turns out that the Constitution does say something about it. The Ninth Amendment, part of the Bill of Rights, says that the enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment was designed to answer one objection to a bill of rights, which was that if some rights were written down, the government might claim that no other rights existed. ( which is Alito’s argument regarding Roe) Other rights do exist, the Ninth Amendment says. Don't deny them. And the fact that they haven't been written down, doesn't make them any less important. Don't disparage them either.
So again, the practice of enforcing rights that aren't there in the words of the constitution can actually be justified by reference to those words.
But how do you identify them?
Sometimes they say, we will protect rights that are deeply rooted in our nation's history and tradition. (Alito’s Reasoning) But that’s a vague standard without defining what is considered historical or traditional. A car that’s 25 years old is considered a classic car. Is there a time frame regarding human rights? When exactly does a right become a right and who determines whether something is a tradition? And, sometimes they say basically, we will protect whatever we think is important enough. There's no perfect answer. That's the one thing that everyone seems to be able to agree on. So, if there is no perfect answer, and the court is prohibited from establishing religion as the basis for an argument that it is trying to rule on, then there is no way for the Supreme Court to pass judgment on the validity or soundness of Roe. There is no perfect answer. If there is no perfect answer then Alito’s opinion therefore must be flawed. And it is. He resorts to Catholic Doctrine which opposes abortion to inform him as his moral compass and he imposes that doctrine on the country, in violation of the Establishment clause of the first Amendment.
Considering the direct impact overturning a protected right will have on half the population of the country, they have a responsibility to uphold a right that the people have relied on as part of the healthcare of women. We don’t remove rights in this country. If anything, we expand rights as we become more enlightened as a society. We should never deny rights to some that are available to others. Abortion was available to everyone. That doesn’t force everyone to have one. The idea of Choice is simply that. It’s a matter of ones choice to have one or not. The choice on the matter is left up to the woman. However religion forbids abortion to everybody regardless of whether you subscribe to that belief or not. It denies the autonomy of individual choice. It denies the freedom of a person to make their own decisions about their own health issues. The state will determine what is moral for you. You have no freedom of conscience that is protected by the First Amendment. And it’s Alito’s religion that will make that decision for you that is being injected into the decision to overturn Roe and send it back to the states that Alito knows will force a 10 year old girl who was raped to follow through with a pregnancy to satisfy the demands of somebody else’s religious beliefs.
So, the Supreme Court protects individual rights that aren't listed in the Constitution. It does this under the due process clause, which makes the whole project look a little less sensible than it might if the court said, this is based on the privileges or immunities clause; and the Ninth Amendment.
Now, what about states' rights? You hear a fair amount about states' rights sometimes especially coming from conservative Republicans. When the federal government is doing things that people don't like, one of the arguments against it is usually something about states' rights. But what are these rights?
The Constitution actually has very little to say about states' rights. It says that no state can be deprived of its two senators, and no state can be forced to give up territory without its consent. But, when people talk about states' rights, they tend to point not to those provisions, but to the Tenth Amendment. That says that the powers not delegated to the federal government or prohibited to the states, are reserved to the states or the people.
Amendment X
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 Supreme Court has at times relied on this as a source of states' rights. The federal government can't control the wages that states pay their employees at one set, or the hours that they work. Some essential state functions, it said, are immune from federal regulation. But it only said this for about ten years, from 1974 to 1985.
In 1985, it gave up on the idea of states' rights in the form of these immunities. Why? Because it couldn't figure out which states' rights were important enough to protect.
And one thing to think about there, is whether states' right and individual rights are different in important ways.
Now, some people say individual rights are more important, they're valuable in and of themselves. States' rights are valuable only to the extent that they make individuals better off. The Constitution is there for the benefit of we the people, not we the states.
And other people say no, the states are sovereigns within our constitutional system. Their dignity is important, their rights matter in and of themselves.
Here's something else to think about, the Tenth Amendment doesn't actually say anything about rights.
The Ninth Amendment does, it is about individual rights.
But the Tenth Amendment is about state powers, not states' rights.
States don’t have rights. States have powers. Those are two entirely different things.
And what the Supreme Court has done more recently, in terms of protecting states, has to do with powers, not rights. In a couple of recent cases, the court has said that the federal government can't make the states use their powers. It can't make state legislatures pass a law. Or state officials enforce a federal law. The federal government can't commandeer the states. This is an approach that works pretty well with the words of the Tenth Amendment. It says the powers of the states belong to the states. They aren't there for the federal government to use whenever it wants.
So, the states, the federal government, the people. Those are the players in our constitutional system.
The 9th Amendment is about individual rights.
It was the response to the objection to a Bill of Rights, which was that if some rights were written down, the government might claim that others don't exist.
The Ninth says that other rights DO exist and the fact that they haven't been written down doesn't deny them or make them less important.
How are they identified? Sometimes the SC has said they are rights deeply rooted in our history and tradition. This was Alito’s reasoning on his opinion on Roe. Except we already have shown how there is no perfect answer. That method is arbitrary and ill- defined. And that includes Alito’s reasoning used to overturn a right.
Jefferson said this in the famous Danbury Letter where he coined the metaphor “wall of separation between church and state. He said,
“ Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions…I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. “
“The legitimate powers of government reach actions only, & not opinions.” Justice Alito seems to have overlooked the fact that when he says in the first sentence of his opinion, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views”, he’s telling us something that we all know. That’s right Justice Alito, so why are you injecting an opinion that is based on your religious beliefs into this issue? The overwhelming arrogance you display here is breathtaking. How dare you present an opinion on a profound moral issue by injecting your own moral viewpoint in the process and then imposing that opinion as morally superior to all others, on the entire country. And what makes your moral/religious view infallibly correct? Are you now Gods messenger? When did that happen? He’s informing us right up front that this is a religious/morality issue that the court is now going to render an opinion on when no less a figure than President Thomas Jefferson has already told us that the legitimate powers of government reach actions only, & not opinions. Does Alito know more about religions impact on civil society then Jefferson? The man who drafted the Virginia statute for Religious Freedom that the religious clause of the 1st Amendment is based on. Talk about original intent?? How about looking at the guy that was there in the beginning, as well as his colleague and fellow Virginian James Madison who authored the Bill of Rights. And what informs Alito’s opinion? Catholic Doctrine. And who sets Catholic Doctrine? The Pope who sits in the Vatican in Rome. Not only does SCOTUS not have standing to provide an opinion on a moral/religious matter, they get their opinion from a foreign entity and impose that on the country. Of course Alito isn’t alone in this religious collusion. Other Justices are as well ( Gorsuch, Kavanaugh, Barrett, Roberts and Thomas. All practicing Catholics following Catholic Doctrine that opposes abortion. )
Over the years it’s become obvious to many of us that Republicans aren’t fans of democracy. Years ago I stated that conservatism was the domination of society by an aristocracy, and that it was incompatible with Democracy and more compatible with Monarchy, Theocracy, Autocracy and other forms of authoritarian rule. I found that it was a destructive system of inequality and prejudice that is founded on deception and has no place in the modern world.
More and more Conservatives appear to be asserting the concept of States Rights to justify blocking the individual rights of the people of their states in order to enforce a conservative agenda that is in conflict with those rights.
The argument made by the Confederates was that The states gave power to the federal government. Things didn't work out and we're taking it back. Except the states didn't give power to the federal government, the people did. And states can't take back what was never theirs. The political visions that clashed in the Civil War are really about who is the highest authority in our system. Is it the states, as the Confederates argue? Or is it the people, as Lincoln claims?
Lincoln's theory is that the federal government can protect liberty. It can protect people from the states. The Founders' Constitution doesn't do this, but the Reconstruction Constitution will. And the 14th Amendment is the most vital of the Reconstruction Amendments. It’s the Amendment that extends and asserts all the rights of the people to every branch of government. The people now have the right to sue the states. This is the Amendment that the Republicans are targeting. The people could never do that under the original constitution. Today they can. Unless a rogue court takes that away.