From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Equal protection dead end? 1.
Organization: Who, me???
Date: Sat, 19 Dec 1992 21:54:56 GMT

In article <34076@rnd.GBA.NYU.EDU> smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias) writes:
>In article <1992Dec11.045131.124@rotag.mi.org> kevin@rotag.mi.org
>(Kevin Darcy) writes: 
>
>>I am quite familiar with critical legal theory, thank you, Stephen. No
>>need for condescension. And I am quite cognizant of the fact that the
>>Constitution is not particularly objective. However, what you have yet to
>>realize, apparently, is that simply WISHING Bodily Autonomy to be
>>Constitutionally-protected does not make it so. Objective or not, there is a 
>>body of knowledge and expertise which has grown up around our Constitution,
>>and as far as I can tell, Bodily Autonomy is far from being accepted within 
>>that clique. This is regrettable, and I will oppose it, but there's a long
>>fight ahead.
>
>(1) You seem not to have noticed that the very language you are
>reacting to as condescending is word-for-word from your reply to me.
>If you can't take it, I'd suggest that you avoid dishing it out.  

Word for word, eh? Please point out the part where I condescendingly 
"recommended" that you read up on the subject matter?

>(2)
>I have been clear that my argument in favor of BA is based on how
>widely recognized it is.  A right can be widely recognized without
>being in the Constitution.  

It's not that it's just absent from the Constitution, Stephen, it's also
lacking from the INTERPRETATION of the Constitution, i.e. precedents of
Constitutional Law. You claim that it is "widely recognized". What 
Constitutional Law scholars have recognized it? What Supreme Court opinions
have affirmed it? Here's a counter-example, from RvW:

	In fact, it is not clear to us that the claim asserted by some
	amici that one has an unlimited right to do with one's body as one 
	pleases bears a close relationship to the right of privacy previously 
	articulated in the Court's decisions.  The Court has refused to 
	recognize an unlimited right of this kind in the past. Jacobson v. 
	Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization).

>(3) Define the clique and demonstrate the truth of your claim that they 
>reject BA.

I am not claiming that they "reject" BA, Stephen. I am claiming that they
fail to recognize it. You are asking me to prove a negative. Why don't you
prove your _positive_ claim that BA is "widely recognized"? 

As for defining the "clique", why don't we say, any scholar who has published
a work dealing primarily with Constitutional Law, which is or has been required
reading in at least one of the top 10 law schools by reputation, or any 
federal judge who adjudicates matters of Constitutionality.

>>Why? I don't think the Consititutional Right to Eat Rocky Road Ice Cream 
>>Whenever I Want is particularly "established", either, but I doubt you could
>>draw much of a valid inference from that opinion as to whether I support such 
>>a "right" more or less than you.
>
>The fact that any challenge to the right to eat Rocky Road would be
>quickly and summarily dismissed by any legal body in the country amply
>demonstrates my point that a right need not be specifically enumerated
>to be strongly protected.

Huh? Have you lost track of the discussion, Stephen? My point is that just
because someone doesn't think something is legally VALID doesn't mean they
don't believe in it personally. Lots of people believe that God exists, for
example, but they would strenuously oppose any attempt to pass a law that
declared the existence of God. Therefore, just because I recognize that BA
is not a legally-recognized "fundamental right", in Constitutional terms,
doesn't mean I believe in BA any more or less than you do.

>>No, Stephen, I'm not "establishing" a hurdle -- I'm _recognizing_ one.
>>I doubt that I LIKE the hurdle any more than you do, but apparently I can
>>see it more clearly...
>
>You were arguing against the existence of the right.  

The LEGAL right, Stephen. I agree that there is a MORAL right to BA, but
I have yet to see proof that this MORAL right has any legal validity at a
Constitutional level.

>I disagree that
>there are the hurdles to acceptance of the right are as large as you
>suggest.  As far as I'm concerned, you are seeing clearly what does
>not exist.  Hurdles against protection of the right are a different
>matter; perhaps our views are in closer agreement on that count.

Let's see your proof that BA is "widely recognized" as a Constitutional 
right. Then we'll talk further...

							- Kevin
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