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Posts Tagged ‘NINTH AMENDMENT’

THE RIGHT’S NEXT TARGET: THE RIGHT TO PRIVACY

In Bureaucracy, History, Law, Law Enforcement, Medical, Politics, Social commentary on June 29, 2022 at 12:12 am

“If anyone reproaches me and asks why I did not  resort  to the  regular courts  of justice, then all  I can say is this: In this hour I was responsible for the fate of the German people, and thereby I became the Supreme Judge of the German people!”

That was how Chancellor—not yet Fuhrer-–Adolf Hitler justified his June 30, 1934 purge of his private army, the brown-shirted S.A. It has gone down in history as “The Night of the Long Knives.”

Adolf Hitler

It took five “Supreme Judges” of the American people to purge the right to abortion for millions of American women—including victims of rape and incest.

Hitler’s “blood purge” carried Germany yet another step closer to Nazi dictatorship. Similarly, the Supreme Court has carried the United States yet another step closer to a Republican dictatorship.

In the past, the Supreme Court has made decisions that have blackened its reputation in the eyes of historians.

One of these occurred in 1857, in what has become known as the “Dred Scott decision.” The Court decided 7–2 that neither Scott nor any other person of African ancestry could claim citizenship in the United States.

The case centered on slaves Dred and Harriet Scott and their children, Eliza and Lizzie. The Scotts claimed that they should be granted their freedom because Dred had lived in Illinois and the Wisconsin Territory for four years. Slavery was illegal in those jurisdictions, and their laws said that slaveholders gave up their rights to slaves if they stayed for an extended period.

Dred Scott photograph (circa 1857).jpg

Dred Scott

Chief Justice Roger B. Taney ruled that freeing Scott and his family would “improperly deprive Scott’s owner of his legal property.” 

As despicable as the Dred Scott decision was, it nevertheless lay grounded in the existing laws of that time. The Court did not reverse an earlier ruling. Millions who were already enslaved were kept enslaved. But it did not extend slavery throughout the country.

The Court’s reversal of Roe v. Wade set a huge and dangerous legal precedent.

On January 22, 1973, the Court had struck down virtually every anti-abortion law in the country. On June 24, 2022, it overturned that decision.

It went, in effect, from having expanded freedom of choice to suddenly abolishing itAnd the Justices did so in the single most intimate aspect of a woman’s life.  

Once people have tasted a benefit, they expect it to continue. When President Barack Obama fought to secure passage of the Affordable Care Amendment (ACA) Republicans repeatedly and savagely tried to prevent its becoming law.

And once it became law, Republicans continued to try to overturn it. They knew that if millions of poor and middle-class Americans finally won the right to obtain medical care, they would support it as wholeheartedly as they did Medicare, Social Security and the Civil Rights Act.

For 49 years, Republicans made ending the right to abortion their key issue for gaining and holding elective office. It won them cheers, votes and monies from the Religious Right and powerful Right-wing forces such as Fox News.

Now, suddenly, they have attained their objective. Millions of women will no longer be able to obtain an abortion in cases of rape or incest—let alone because of a failed condom or birth control pill. 

Nor is that the only right the Justices intend to revoke.  

In his concurring opinion, Justice Clarence Thomas said that the Roe decision should prompt the Court to reconsider all of this Court’s substantive due process precedents. And he named the three landmark decisions that established those rights.

Clarence Thomas official SCOTUS portrait.jpg

Clarence Thomas

According to Kenji Yoshino, Professor of Constitutional Law at the New York University School of Law: 

“The Ninth Amendment says that there are unenumerated [implied] rights in the Constitution. And those include things that we take for granted every day, like the right to vote, the right to marry, the right to travel.

“These are all rights that are nowhere enumerated explicitly in the constitution but that we nonetheless take for granted as Americans.

“One of the most shocking things about [the Court’s] opinion was that these unenumerated rights will only be respected if they are deeply rooted in this nation’s history and traditions. And so it essentially said that if the framers of the 14th Amendment in 1868 didn’t recognize the right and question that the right didn’t have constitutional existence.

“And so that’s what leads Justice Thomas and that concurrence, to see an opening to say, ‘Well, maybe we’ll get rid of not just the right to abortion, but also the right to same-sex marriage, the right to sexual intimacy and the privacy of your home, and even the right to contraception.'” 

Thomas, says Yoshino, is inviting lower courts to reach that conclusion. He is also inviting Right-wing litigants to bring cases which can eventually reach the Supreme Court.

Thomas is in effect saying that once this happens, the right to same-sex marriage, contraception and privacy can be struck down by the Court—just as it has struck down the right to abortion.

Mark Antony, speaking in William Shakespeare’s “Julius Caesar,” had it right: “The evil that men do lives after them.”

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