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January 03, 2013 01:01 AM UTC

The Constitution doesn't grant your rights -- it protects them

  • by: Voyageur

(Because the Constitution is important, I’d like to further this dialog. – promoted by Voyageur)

      A relatively new Polster, ElliotFladen, has distinguished himself among our starboard stalwarts by posting reasoned arguments to support his views, rather than cutting and pasting boilerplate from some right-wing websites.  But while I respect him, I profoundly disagree with some statements he made in a recent exchange, in which I defended the right to martial privacy doctrine established in Griswold vs. Connecticut.

    Griswold, 381 U.S. 479 (1965) for those of you who like to look up such things, established a a right of privacy in the process of striking down a Connecticut law that banned the use of birth control by even married couples.


  ElliotFladen attacked that ruling, the precursor to the more famous Roe v. Wade abortion decision, in part because he found it at variance with an obscure labor law ruling upholding minimum wage laws.  I won’t go into that argument except to state that I have a masters degree in labor relations and am quite sure my knowledge of labor law and history far exceeds his.  I do, however, challenge his ending assertion in that discussion:  

“You need to understand two very simple facts of constitutional law.  (1) The constitution does not enshrine your policy preferences or mine.  I like contraception.  My wife and I have used it.  My girlfriends in the past have used it.  But just because I like it and I think it is SMART to use it does not mean that there is a CONSTITUTIONAL RIGHT TO IT.  (2) And if you believe that there IS A CONSTITUTIONAL RIGHT to contraception, you need to figure out the SOURCE of that right.”

    Let me make a couple of preliminary points.   First, Mr. Fladen, all caps is considered “shouting” on blogs and is also a bit jarring to read.  The portions you capitalized would have been better served by italicizing.

  Secondly, you are quite wrong to say the Constitution does not enshrine policy preferences.   It was written by white men who owned property and displays a decided preference to property and capital over labor – even going so far in its original form as to enshrine the right of white men to own black men and women as slaves.   This background is significant because while right-wingers love to assail “Judicial Activism” as some sort of left-wing heresy, the fact is that judicial activism goes back as far as the birth of the Supreme Court and has usually been right-wing activism aimed at upholding the rights of capital over labor – such as the decisions Fladen cites in which courts prohibited minimum-wage laws or limits on hours of work as unconstitutional limits on the right of contract.  Page Smiths eight-volume “People’s History of the United States” makes this point at length and I commend it to any serious student of American history.

   But let us turn now to Mr. Fladen’s rather irrelevant discussion about his wife and past girlfriends using birth control, which sets up his dual-edged claim:


“But just because I like it and I think it is SMART to use it does not mean that there is a CONSTITUTIONAL RIGHT TO IT.  (2) And if you believe that there IS A CONSTITUTIONAL RIGHT to contraception, you need to figure out the SOURCE of that right.”

Actually, that’s wrong on both points, and suggests a serious misunderstanding of what the Constitution is all about. In point of fact, it is misleading to suggest that the Constitution confers any individual rights.  Most of the rights granted by the Constitution proper are granted to states, not individuals: such as the right of each state to have two senators, regardless of its population.

    Even the so-called Bill of Rights doesn’t actually “grant” individual rights.   It assumes God gave you your rights and that governments will eventually try to take them away.   The Bill of Rights is thus less a grantor of liberties than a set of chains set upon those governments to make it difficult for potential oppressors to take away your God-given rights.

    So, Mr. Fladen, it is not up to me to find a constitutional right to contraception.   It is up to you to find an enumerated power that gives the state or federal government the right to send its Sex Police into my bedroom and pull off my condom or flush our birth control pills down the toilet!   Good luck with that.  

On further review, as they say in the NFL, Bad Luck with that!

   Mr. Fladen does have the grace to recognize that the majority opinion by Justice William O. Douglas found the right to marital privacy in the “penumbras” and “emanations” of other constitutional protections not the precise language of the document himself.  But he is on shakier ground by trying to pin the decision on due process provisions of the 14th Amendment, which are cited only in the concurring opinions of John Marshall Harlan II and Byron White.

This brings us to my favorite part of Griswold — the concurrence by Justice Arthur Goldberg, which uses the Ninth Amendment to strike down the Sex Police.

Ahh, the Ninth Amendment, this cranky conservative’s favorite part of the Bill of Rights, and the one that forms the basis for my notions set above.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

   In both logic and math, the ninth amendment is followed by the 10th:

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.”

    So this, Mr. Fladen, is why I don’t waste time looking for a right to privacy, a right to contraception, or a right to abortion in the Constitution.   I don’t have to!  It’s up to you and anybody else who tries to take those rights away from me to find an enumerated power permitting you to do so.

        I’m an avid chess player.  Nowhere does the constitution give me the right to waste my days on the 64 squares.  But I don’t have to seek that right.   You have to find a way to take it away from me!  [And I must admit that, when playing White, the French defense has often robbed me of the pleasure of the game.  But that is the nature of this vicious game, not constitutional law;-)]

  The Constitution doesn’t grant anybody the right to be a Denver Broncos fan.  It doesn’t grant the right to watch Jeopardy.  It doesn’t guarantee the right to prefer Mozart to rap music. You have thousands of rights that aren’t mentioned in the Constitution – because they don’t have to be.

   Remember, whether the right you cherish is to birth control, abortion, chess, or rooting for the Orange Crush, you don’t have to look for a part of the Constitution that gives you that right.  It’s up to those who want to take your God-given rights away to search for the enumerated powers that allow them to take away those rights, and they have to get past the ninth and tenth amendments before they can even try.

  (FPE note:  As I said, I do respect Mr. Fladen.  If he would like to organize his own thoughts on constitutional law into Diary form, I shall happily promote it to further this discussion.)



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