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September 20, 2005
Right to privacy?
In a Sunday New York Times op/ed, Princeton University law professor and conservative pundit Robert George questions the Supreme Court's justification for finding a "so-called right to privacy" in the Constitution based on the 14th Amendment. The 14th Amendment declares, "nor shall any state deprive any person of life, liberty, or property, without due process of law."
"On what constitutional basis can we say that abortion is protected by "due process" but a right to assisted suicide - unanimously rejected by the court in 1997 - is not? Why is sodomy protected and prostitution unprotected? Why does the right to privacy not extend to polygamy or the use of recreational drugs?"
Posted by Joshua Claybourn at September 20, 2005 05:45 PM
Why is everyone so innumerate over this thing. Read the article. The article says they called for:
The new squad will divert eight agents, a supervisor and assorted support staff to gather evidence against "manufacturers and purveyors" of pornography -- not the kind exploiting children, but the kind that depicts, and is marketed to, consenting adults.
That's 8, yes count them, 8 agents. Yeah. Top priority. Imagine what percentage of the FBI's resources are being devoted to this? Hmm. Damn near zero.
Posted by: Mark Olson at September 20, 2005 07:23 PM | permalink
Prof. George asks the right question, but for the wrong reasons. I'm all for legalizing all of those things he listed (and not particularly interested in maintaining the legalization of abortion, frankly). I think much better arguments can be made for legalizing all of the items he listed than can be made for abortion.
Posted by: Ed Brayton at September 20, 2005 08:29 PM | permalink
I'm very sorry the comment above was meant for the prior post. Please disregard or delete.
Posted by: Mark Olson at September 20, 2005 09:18 PM | permalink
However in lieu of trackback, I've written an essay on my blog based on this op-ed you found. It can be found by following the link below.
Sex, Drugs, and Society.
Posted by: Mark Olson at September 20, 2005 09:20 PM | permalink
The problem is this: The due process clause is just that, a prodecural clause (i.e., contains no substantive rights). Arguably the equal protection clause is also a procedural clause demanding the equal application of whatever general laws are on the books.
HOWEVER, the 14th Amendment, properly understood, does indeed contain substantive rights. Indeed, there are so many substantive rights contained within the 14th Amendment, they are, like those of the 9th Amendment, unemerated because they are unenumerable. And they all are properly derived from the Privileges or Immunities clause.
Posted by: Jon Rowe at September 20, 2005 10:06 PM | permalink
Well, privacy doesn't extend as far as it ought to because American law and jurisprudence have always been rife with hypocrisy. I remember how bitterly disappointed I was in Junior High when we were studying Supreme Court decisions to find that they had upheld Blue Laws, laws blatantly designed to enforce Sunday as THE American Sabbath for all retail establishments because of a false claim that it was just to make certain that everyone received a day off. Somehow I doubt the Orthodox Jews (If I remember correctly.) who brought the case need worry about someone reminding them to take a day off.
Posted by: Jim S at September 21, 2005 08:56 PM | permalink
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