The shortest argument ever for confirming Alito

[ADeadSmitty]

Rights are not implied by the Constitution.  That's simply wrong.  They are either stated or not stated.  Those that aren't fall to each state to decide.  It's pretty clear if you read the document.

I basically agree. However, it does get more complicated.

Example: The First Amendment says "Congress shall make no law abridging freedom of speech..." If you read this literally, states can make laws abridging freedom of speech because they're not Congress. Florida could tell Dave Gray that he has to shut this site down for being critical of Bush. I don't think anyone thinks the Constitution would allow that.

[pintofguinness14]

I basically agree. However, it does get more complicated.

Example: The First Amendment says "Congress shall make no law abridging freedom of speech..." If you read this literally, states can make laws abridging freedom of speech because they're not Congress. Florida could tell Dave Gray that he has to shut this site down for being critical of Bush. I don't think anyone thinks the Constitution would allow that.

Actually, the Constitution states clearly that no state should make laws to abridge the rights of US citizens.  Section 1 of the 14th Amendment reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

[pintofguinness14]

The constitution does not say a lot about of a lot of things (at least not explicity), however many rights are implied and that is where the right to chose comes from (privacy). Its the courts job to interpret which rights are available and they did. In no manner did they overstep their authority.

I wouldn't say the Court overstepped it's authority.  Clearly, the Supreme Court is the final arbiter of what is and what is not a Right under the Constitution.  I think Roe was decided wrongly.  I believe the State has a legitimate interest in protecting human life at any stage of development and the right to privacy (cobbled together as it is) does not extend far enough to trump the State's interest.  This issue belongs in the hands of the various state legislatures. 

I get your point, but it's a bit idealistic. Abortion is always going to be a point of contention. Maybe it will focus more on the state level if Roe is overturned, but it will still be debated. Pro-lifers would only be happy if abortions were only allowed in extreme cases (and some would only be happy if it was not allowed at all) so the debate would still go on.

Laws can always be repealed so there is no end to this debate one way or another. A solid stance by the judiciary branch is the only way to have a consistent line on this one.

I agree that this issue will never "go away", I think we'd all be better served if it was taken out of the courts and taken up by the state legislatures.  I recognize that we'll end up with some states having legal abortion and some states not, but I think that's OK. 

Of course, I might not think this way if I thought abortion on demand was a Right.  If the people believe abortion should be available, then their elected officials will vote for it.  Since all the polling indicates that a majority of Americans are in favor of abortion rights, why not just let Democracy do it's thing?

[ADeadSmitty]

Actually, the Constitution states clearly that no state should make laws to abridge the rights of US citizens.  Section 1 of the 14th Amendment reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

"Privileges and immunities" do not include the rights guaranteed by the Bill of Rights. See The Slaughterhouse Cases, 83 U.S. 36 (1873).

[pintofguinness14]

"Privileges and immunities" do not include the rights guaranteed by the Bill of Rights. See The Slaughterhouse Cases, 83 U.S. 36 (1873).

Ok...so how did we come to understand the reasoning you illustrated with your First Amendment example? 

[ADeadSmitty]

Well, they're thought of as being part of the substantive rights that are protected by the "due process" clause of the Fourteenth Amendment. This is the same source of rights the Supreme Court has said includes the right to an abortion. 

"Substantive due process" is often criticized as an oxymoron by people who think Roe was wrongly decided (this includes me, by the way). But, at least under current doctrine, if you say Roe is wrong because courts shouldn't read stuff into the Constitution that isn't in the text (i.e. that the idea of substantive due process is a pathetic joke), then you do have to come up with an alternative explanation for why states can't violate free speech rights, or conduct unreasonable searches, or impose cruel and unusual punishment, and so on.

I think you're right that the "privileges and immunities" clause seems the most natural source of individual rights against states. And that was what the Fourteenth Amendment's framers had intended, according to a lot of evidence. So your instinct is right on. But that's just not the way the Court has read it. But even if it was, "privileges and immunities" is pretty vague. You seem to be assuming that everyone would agree that it means the same thing as the rights secured against the federal government in the Bill of Rights, when that doesn't necessarily follow.

Sorry for the long post, you got my con law juices flowing.

[pintofguinness14]

Well, they're thought of as being part of the substantive rights that are protected by the "due process" clause of the Fourteenth Amendment. This is the same source of rights the Supreme Court has said includes the right to an abortion. 

"Substantive due process" is often criticized as an oxymoron by people who think Roe was wrongly decided (this includes me, by the way). But, at least under current doctrine, if you say Roe is wrong because courts shouldn't read stuff into the Constitution that isn't in the text (i.e. that the idea of substantive due process is a pathetic joke), then you do have to come up with an alternative explanation for why states can't violate free speech rights, or conduct unreasonable searches, or impose cruel and unusual punishment, and so on.

I think you're right that the "privileges and immunities" clause seems the most natural source of individual rights against states. And that was what the Fourteenth Amendment's framers had intended, according to a lot of evidence. So your instinct is right on. But that's just not the way the Court has read it. But even if it was, "privileges and immunities" is pretty vague. You seem to be assuming that everyone would agree that it means the same thing as the rights secured against the federal government in the Bill of Rights, when that doesn't necessarily follow.

Sorry for the long post, you got my con law juices flowing.

Thanks for the lesson.  It doesn't necessarily follow that everyone would construe "priviliges and immunities" to mean those secured against the Fed Gov in the Constitution, however, as you pointed out, that's the way I see it :-)

At any rate, I'm not a strict contructionist.  For instance, the Constitution doesn't say anything about the State's interest in protecting life at all stages, but that's a critical argument in favor of restricting access to abortion.  When the rights are not enumerated, I think they often come into conflict with other unenumerated rights.  It's not that I don't agree with the idea of a right to privacy, it's that I don't think that right trumps the State's right to protect potential human life.