We need a constitutional amendment...

[rateyes]

In light of the Alito hearings and upcoming votes, (Dems,IMO, won't find a spine and filibuster)..I believe we have a "winning issue" that we can keep pushing in the faces of the Republicans and the voters.

A vast majority of Americans want to see abortion "Legal, safe and rare."

How about the Dems propose an Amendment to the Constitution that guarantees unequivocally a "right to privacy" under which abortion will always remain legal. Regardless of who sits on the Supreme court, then, the issue is settled.

Such an amendment could also be written to unequivocally protect the rights of privacy as it comes to other issues...wiretapping, "bedroom" issues, etc.

This, IMO, has the potential to, not only codify common sense, but help Dems retake control of the legislative branch.

Bring this issue to the people in the ultimate way. I think it passes. After all, who really, in the end, doesn't want a "right to privacy?"

[Progressive Chris]

1. Good idea

Great idea, but the powerful and rich anti-abortion lobby will surely try to kill it. They will constantly run commercials in the red states saying how "immoral" it is.

[rateyes]

3. Of course they will...

I don't expect it to happen without a hell of a fight. I do think it is a "winning issue," that deserves to go through the political process...Getting the Constitution changed can take years, during which we keep hammering away at the minority who will fight it. This is not only practical, it is political and Dems are on the correct side of it.

Welcome to DU, BTW. :hi:

[mmonk]

2. And its not just abortion.

We'll need a ton of amendments to protect liberties and checks and balances supposedly assured by the constitution.

[tocqueville]

4. IMHO this is the wrong approach

what you need is a LAW passed in congress and found constitutional. The "right to privacy" is only a small part of the motives to allow abortion : the main reasons are women rights, health rights and social rights.

the "right to privacy" doesn't really exists in the US constitution. It's a mere penumbral interpretation of privacy regarding other matters. It has been chosen as a motive to avoid a real popular discussion. A law allows to REGULATE under what forms abortion can be performed and thus win a broad consensus. Trying always to amend a 220 yeras old text through judicial interpretation is a very dangerous way specially in a system with a supreme court elected for life.

[nickinSTL]

5. true, but I think that the right to privacy as established

by Rowe v. Wade is the Repubs' main reason for wanting to overturn RvW. It's about their unlimited power to control our lives, the fact that RvW was a decision on an abortion case just allows them to use the Religious Right's opposition to abortion to put an end to state recognition of the right to privacy.

[Burning Water]

14. Nah!

I'm not saying some of the leaders aren't exactly the way you described. But they only get the emotional and political support from the scientifically unfounded view that a fertilized egg is a human being. If we could sell the "fundies" on the "tissue" idea, something that I don't foresee happening, the issue would go away.

[rateyes]

7. The problem with statute...

is that they can always be declared unconstitutional, regardless of if they are or not. Once it's a part of the constitution (and, the wording would have to include language making it clear just what this "right to privacy" covers)..it doesn't matter what the Supreme Court thinks of it...it, by definition, becomes "constitutional."

[tocqueville]

11. I don't know what you mean by "statute"

but a law can be declared "constitutional" by a court. The advantage of leaving a certain amount of liberty (to the electors through Congresses or Parliaments) is that the law can be easily amended and changed in a democratic process, since humans evolve. In the future, abortion might not be needed or regulated differently due to progress in science. Is the constitution to be "amended" again ?

According to you (pure logic) the death penalty can't never be removed because it's "constitutional" on a federal level. But tomorrow a court could declare the contrary (if you can find a "right to privacy" that permits abortion, you can find an interpretation of the constitution that says that life is sacred, thus death penalty unconstitutional). With semantics everything is possible. And you are back to 9 old men deciding what is good or bad for people or not.

The US are pretty alone among democracies with the Supreme Court system, specially with one with so few counter-powers and so much power. All the nomination procedure and discussion today shows that the court is only a political instrument and not a real independent entity.

IMHO the best solution from a democratic point of view is to have the supreme legislative power to an elected body. A supreme court should only rule in civil and criminal matters as the last level of appeal, but NOT on constitutional matters (separation of powers). The constitutionality of laws could be delegated to a special "council" with both lawyers and elected laymen.

For me a constitution is only a frame that presents the rules of the game. It cannot replace law. I have read that many European lawyers are concerned (from a general standpoint) by the fact that judicial discussion in the States replaces lawmaking. It's like making the referee DURING the football game dictate the rules and even invent new ones. But the referees role is to apply the rules, not to invent them.

[RaleighNCDUer]

13. Maybe you're not getting what "checks and balances" means.

The Supreme Court is the check on the power of the executive and the legislative branches. In a panic situation, like after 9/11, the legislature can be stampeded into passing laws that are, shall we say, ill-advised. (Patriot Act, anyone?) The Supreme Court's duty is to decide if that law is in accordance with the constitution -- which is not simply a framwork upon which the law hangs, but the ultimate law of the land.

We can't forget, Hitler's seizure of power was not complete until he had taken control of the judiciary -- control the people who decide what is and is not legal, and you control the nation. Our system reaches beyond the amalgam of laws in the US Code, to have the final say rest in the constitution itself. Legislatures can write and amend laws at the whim of a temporary majority, but the constitution can only be changed through a deliberately arduous process -- that is the only thing that protects us from the panic of the populace. No matter how bad things get, the constitution prevents us from voting away our liberties in the face of a temporary crisis.

The supreme legislative power does lie with an elected body - the congress. That is what it's job is. But a law passed by congress still must stand the test of constitutionality. And that is the SC's job. It is the constitutionality court. Deciding what is law rests with the lower courts, up to the US Court of Appeals. But it is the SC that decides if the law is legal. There is a counter-power to the Supreme Court, and that is the process by which the constitution is amended. Laws agasint flag burning, for instance, could be declared to be unconstitutional violations of the 1st amendment, but a anti-flag burning amendment could not be unconstitutional because it would be part of the constitution, until it was again amended out of existance (like Prohibition was).

That is why we cannot allow Alito to sit on that court. He is beholden to corporate interests and a RW ideology that believes in the 'unitary Executive' despite there being no basis for that in the constitution. IOW, he would subvert the constitution for his political ends, and it could be decades before we could return to democracy.

Freedoms can be lost, if the SC works in conjunction with the legislature to subvert the constitution. In the 17th and early 18th century there were many black landowners in the south, but their holdings were legislated out of existance by the 19th century -- the descendents of free native-born blacks found themselves enslaved. After the Civil War, the franchise was granted to the freed slaves, but over the next 40 years that franchise was stripped away by legislatures and a compliant Supreme Court to where, in 1900, there were parts of the country where not a single black vote was cast or counted. And this was AFTER the 14th amendment was passed.

An amendment that protects privacy should not be passed merely to protect the right to an abortion. It would be to clearly protect the rights suggested in the 4th amendment, protecting the indiviual's security from warrantless search -- if a warrant is needed to search a residence or person, the implication is that a right to privacy is pre-existant, making that warrant necessary.

I hope you take this little lecture in the spirit it was offered, because your suggestion that the constitution was "only a frame that presents the rules of the game" really pissed me off.

[tocqueville]

20. obviously there are different approaches to the problem

"A constitution is a system, often codified in a written document, which establishes the rules and principles by which an organization is governed. In the case of nation states, this term refers specifically to a national constitution, which defines its nation's fundamental political principles and establishes the power and duties of each government." So much for the frame, it's a standard definition.

http://en.wikipedia.org/wiki/Constitution

"The Supreme Court is the check on the power of the executive and the legislative branches."

Not in all democratic countries (I think the US are pretty alone), since the Supreme Court needs a counter-power TOO. It's obviously very difficult to do it specially when a President can appoint judges for life and to do it needs only a majority. That's why other countries let the judiciary "out" of the system and replace the check of constitutionality to a bipartisan (or tri etc..) elected body even if the President (or the Parliament) has the right to appoint some "judges".

I think the problem lies in that America has a tendency to look at the Constitution as LAW, and always refer to it judicially instead of getting through a normal lawmaking process. From a democratic point of view it is very discussable if it is a good solution. Shall I remind you that Franklin Roosevelt thought that too and tried to shortcut the Supreme Court by "packing it". It didn't succeed (and was a bad solution) but scared the hell out of the judges.

Checks and Balances don't HAVE to be organized the way it is in the US. It's obvious that it creates a lot of problems when a political majority takes over all bodies. I don't mean that the European/Canadian etc.. solutions are the perfect ones (they have other flaws). But I still hold that lawmaking through elected bodies is a far better solution from the democratic point of view than resorting to a judicial interpretation of a document written 200 years ago, everytime the issues are controversial.

[rateyes]

16. Your solution...

as good or bad as it may be, is not how it works today. Constitution DOES trump law. If a law conflicts with the constitution, it is overturned. I also disagree with your statement that, with my position the death penalty could never be overturned. Quite the opposite is true. The death penalty has been overturned by the supreme court on constitutional grounds as "cruel and unusual punishment." The court later overturned that ruling, and the laws that provide for capital punishment allow those executions to go forward. If, however, a constitutional amendment was written and passed saying, "Capital Punishment shall never be employed in the United States." Until that amendment is repealed, capital punishment is unconstitutional.

We can pass a law outlawing abortion. The courts could uphold it as "constitutional." The courts could then come and call it "unconstitutional." Put the language in the document, not just for abortion, but guaranteeing a "right to privacy" and the issue is settled.

[tocqueville]

21. yes it trumps law, because a safeguard must be somewhere

but the procedure should be more an exception than the rule. My example with death penalty was only rethorics, but you have plenty of examples where the "translation" gives what's "expected" from the rulers. One of the best examples is that segregation was constitutional in the US until 1954. What I know of it has not been amended, but abolished by ruling. So some Gonzales or Alito can find it constitutional tomorrow again. Or torture. That's exactly where the problem lies.

And putting the "right to privacy" in the text doesn't solve anything. Because you'll find a bunch of judges tomorrow that will find that "abortion has nothing to do with pricacy"...

It is much more difficult if you have a (majority voted) law that says "abortion is legal etc.." and then that a court says : "that law is constitutional". So unless a NEW law is voted (by a majority), the judges cannot overturn it depending of the ruling President, vacancies, deathfalls or whatever.

[meow2u3]

19. The right to privacy exists in the 4th and 9th amendments

Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It may not be worded explicitly as a right to privacy, but common sense dictates that "...to be secure in their persons, houses, papers, and effects..." is easily summed up in one word: privacy.


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

This amendment also means you can't take rights away from people.

[DazedandConfused]

6. never happen

good idea, but will never happen

[rateyes]

8. I disagree...

If the Dems can take control, at least partly on the issue of "privacy" they can put the process in motion....when it gets sent to the state legislatures, it becomes a political campaign issue (a winning one, IMO) which will help propel Dems to power in the states to get the necessary ratification. In the end, it will come down to what the "people" want. In the meantime, we've got an issue to keep hammering the Republicans on..."Why do you oppose a right to privacy?" That's like asking the question, "why do you hate baseball, motherhood and apple pie?"

On edit: One thing is for sure, it won't happen if we do not try.

[newyawker99]

23. Hi DazedandConfused!!

Welcome to DU!! :toast:

[Silverhair]

9. Any 13 states can block a constitutional amendment.

It takes a 2/3 majority in both houses to even get a proposed amendment out to the states.

[rateyes]

10. I understand all of that....

I'm not saying it is going to be easy...I am not sure it will even pass....but I am sure it is a "winning" political issue that will move us in the right direction. It keeps the issue of privacy on the political burner, and it forces Republicans who are opposed to a "right of privacy" to explain why. I'm looking LOOOOONNNNNGGGG term here.

[mcscajun]

15. Good thing you're looking long-term. Recall the history of the ERA

Which has been going on a HELL of a lot longer than some might think: 83 years. Eighty-three Years!

The National Women's Party presented the ERA to Congress in the 1920s. From the year 1923 through 1970, the ERA was introduced in every session of Congress, yet was never debated or voted on in all that time. It never got out of committee, not once.

Finally, in October 1971, the resolution was adopted by the House, and the following March (1972) it was adopted by the Senate. Then the fight began for ratification, which had a deadline of March 22, 1979.

There was a flurry of state legislative ratifications during 1972 and 1973, followed by three in 1974, one in 1975, and one in 1977. 1976, America's Bicentennial Year, saw None.

As the deadline approached, only 35 of the required 38 states had ratified. Four states had adopted resolutions to rescind their previous ratifications and another adopted a resolution that made its earlier approval contingent on ratification by the required number of states meeting the deadline. There was considerable debate among constitutional scholars on the issue of rescinding ratifications or altering prior ratifications at that time; it didn't matter in the end.

In late 1978, the 95th Congress adopted a House Joint Resolution to extend the ERA's ratification deadline to June 30, 1982. Not One More State ratified the ERA during the three year extension.

It's been more than twenty-three years since that deadline.

[rateyes]

17. Exactly my point....

and that debate over women's equality rages on even today, with the Democrats being the political beneficiaries of that...and, women have come "closer" to equality under the law, although we have a long way to go in practical application....Dems still need to be talking about women's equality, perhaps even introducing the amendment again. Let's quit allowing the Repigs to frame the debate. IMHO, we ought to be putting our issues on the front burners. We are always REacting. Sometimes we need to ACT.

The majority of this country want, for example, a minimum wage increase. When is the last time you heard a Democratic candidate talk about the issue? Equality for women in the workplace, protecting the environment, etc....all winning issues for Dems....we rarely hear anyone, including Dems running for office talking about these things.

Let's put this issue on the front burner....keep hammering it...frame it like this: The Dems want to protect your privacy---wnat to keep government out of the bedroom, your medical decisions. If you are not a suspected terrorist, the government has no business tapping your phone, etc......The republicans wants the government to control your lives (what a switch that would be in the debate)---they are big brother, etc. It's a winning strategy, IMHO.

[mcscajun]

18. Your original post concluded with "It passes." My point...lotsa luck

with that. Constitutional Amendments are rare...and take time, lots of it.

The Constitution has been around for over 200 years; we have exactly twenty-seven Amendments to it. The first ten all came in a swoop in 1791, so it's not like we've had a lot of volatility there.

Privacy doesn't have time. Roe v Wade doesn't have time. The new Supreme Court we're going to have in a week will be busily dismantling so much it'll take decades to fix, when and if we get control again. Decades while we wait for an amendment.

Yes, laws can be overturned, declared unconstitutional, sometimes years and years after they are passed. Amendments aren't always forever, either. The Eighteenth Amendment got overturned, too...by the Twenty-first. In between were the fourteen years of Prohibition.

I'm not opposed to your goals, I just don't have your optimism regarding amendments. I'm not suggesting we concentrate on a bunch of new privacy laws, either. I don't necessarily know what the right solution is here; the privacy issue is like the Hydra: lots of heads to cut off before you win.

[Name removed]

22. Deleted message

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[Burning Water]

12. Great idea.

Better than trying to get it politically thru all 50 states, you only need 3/4 of them. I like it.

[SaveElmer]

24. Something like this might help in the west and mountain states...

Where personal privacy is a huge issue. In fact I think it is here you will see the biggest move our way. The Terry Schiavo issue I believe is going to turn out to be a much bigger issue here than people probably realize.

This type of amendment might solidify an association between the right to privacy and the Democratic Party.

Not a bad idea