Constiutional thought question

[DVaut1]

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Invalid by 14th Amendment Analysis - right to have children is fundamental right.

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As benman and I have been going back and forth, though - such a reading of the 14th Amendment (a reading which allows for substantive due process to invalidate child-limiting laws) are likely contentious for textualists like Scalia.

In other words, I think the 14th Amendment would invalidate such child-limiting laws; but I don't think that ends the debate (duh) - clearly, some brilliant jurists like Scalia would (likely) disagree

[DVaut1]

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Invalid by 14th Amendment Analysis - right to have children is fundamental right.

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As benman and I have been discussing, though - such a reading of the 14th Amendment (a reading which allows for substantive due process to invalidate child-limiting laws) are likely contentious for textualists like Scalia.

In other words, I think the 14th Amendment would invalidate such child-limiting laws; but I don't think that ends the debate (duh) - clearly, some brilliant jurists like Scalia would (likely) disagree

[microbet]

I don't think such a law would go far in the US, but if it did, you see it being supported by the right as opposed to the left??????

[DVaut1]

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I don't think such a law would go far in the US, but if it did, you see it being supported by the right as opposed to the left??????


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I don't know how it would play out politically; but I'm reaonably confident justices favored by the right (like Scalia and Thomas) would have a difficult time opposing such a law, while justices who have historically defended substantive due process would find legal grounds to object.

It's clearly a hypothetical question; I don't think either the left or the right would be support it. But if it's a question of Constitutional interpretation, I think textualists would have a difficult time striking down such a law.

To reiterate, though: I'm not sure this has much to do with politics, and it's very likely this would be a political landmine for any party willing to embrace it. This discussion is more centered around jurisprudence than it is any kind of serious policy/politial ideology debate.

[DVaut1]

^

My apologies for the double-post; instead of submitting an edit, I somehow made a mistake and posted a similar message with the edits I intended to make.

[tek]

I think non-passage would be lobbyed by the S&P500 constituents [img]/images/graemlins/wink.gif[/img]

On the other hand, with all the immigrants puring in, what difference would it make. Us white folk are doomed anyway.

[bobman0330]

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Yes, it would be fascinating to see the right wing judges try to handle such a case. To overturn such a law, and obviously they'd like to overturn such a law, they'd have to agree with the Griswold and Roe line of cases, it seems.

It comes awfully close to a hypothetical my constitutional law professor posed to us in law school. Is there a right to life under the US constitution, such that in the event Roe v. Wade were ever overturned, would Scalia and others ever try to argue that a state could not allow abortions? Of course no such right can be found in the originalist jurisprudence that Scalia supports, but he's let his own morals interfere with his judicial philosophy before (marijuana legalization as an exception to new federalism, for example). As interesting as it would be, pretty safe to assume we'll never get the chance to see it.


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Uhhh, this is kind of dumb.

Firstly, arguing against the outcome of Raich is not smart. To support California, you have to argue that the government can't criminalize drug possession, or that states can decriminalize federal crimes, both of which are stupid.

Secondly, how can you possibly believe that being opposed to Roe requires acceptance of child limitations? Roe and Griswold are based on the right to privacy. The case you're talking about would be based on the actually fundamental right to have children. Way to distort the arguments of your opponents though.

[DVaut1]

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Secondly, how can you possibly believe that being opposed to Roe requires acceptance of child limitations? Roe and Griswold are based on the right to privacy. The case you're talking about would be based on the actually fundamental right to have children. Way to distort the arguments of your opponents though.

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Re-read the bolded. Where will a strict textualist (like Scalia) derive such an explicit and fundamental right from? It's not in my Constitution; is it in yours?

I think the textualist position on this would be something like: If a majority of people will such a law, and the Constitution makes no explicit prohibitions of such a law, then it is legitimate and should not be interfered with by the judiciary.

[bobman0330]

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Secondly, how can you possibly believe that being opposed to Roe requires acceptance of child limitations? Roe and Griswold are based on the right to privacy. The case you're talking about would be based on the actually fundamental right to have children. Way to distort the arguments of your opponents though.

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Re-read the bolded. Where will a strict textualist (like Scalia) derive such an explicit and fundamental right from? It's not in my Constitution; is it in yours?

I think the textualist position on this would be something like: If a majority of people will such a law, and the Constitution makes no explicit prohibitions of such a law, then it is legitimate and should not be interfered with by the judiciary.

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It seems that you misunderstand Scalia's position. No one disputes that the 14th Amendment and the Due Process Clause of the 5th Amendment incorporate certain fundamental but unspoken protections. By your logic, Scalia doesn't believe the states should be prevented from infringing on free speech, or committing unreasonable searches. Clearly untrue. Scalia's objection is to marking as fundamental "rights" with as brief a history as privacy.

So, in brief, historical traditions are where the right to have a family may be found.

[DVaut1]

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By your logic, Scalia doesn't believe the states should be prevented from infringing on free speech, or committing unreasonable searches. Clearly untrue.

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1) It's not my logic.

2) Free speech and unreasonable searches are explicitly in the text of the 1st and 4th Amendments. So of course, Scalia would believe that the 5th and 14th Amendments' Due Process clauses provide protections for such/from such.

Can you point to something similar about the freedom to have as many children as you'd like? Not in any Constitution I've seen.

To find such a right, you have to look beyond on the text - something textualists cringe at.

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Scalia's objection is to marking as fundamental "rights" with as brief a history as privacy.

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It's not just privacy; it's anything not explicit in the text. Claims of a 'right to privacy' are perhaps what textualists are most notoriously opposed to; but their objections don't end at privacy.

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So, in brief, historical traditions are where the right to have a family may be found.

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I don't think Scalia places much weight on historical traditions - ones not found specifically in the text of the Constitution; perhaps you're a little apprehensive about textualism after all?