From: jclander@texas.mitre.org (Julian C. Lander)
Subject: Re: NOTICE - Details of the March on Washington
Reply-To: jclander@texas.mitre.org (Julian C. Lander)
Organization: The MITRE Corporation, McLean, Va
Date: Mon, 14 Dec 1992 17:53:17 GMT

I stick my neck out again.

In article <15087.2b2c4871@ohstpy.mps.ohio-state.edu>, msp@ohstpy.mps.ohio-state.edu (Michael S. Pettersen) writes:
|> In article <1ge112INNe3@plts.uucp>, tal@plts.uucp (Tom Limoncelli) writes:
|> > 1) "What's this reproductive freedom thing?"  Well, the legal basis for
|> > Roe v. Wade is the 12th [?] amendment (right to privacy; specifically
|> > between a doctor and a patient).  This same part of the constitution is
|> > used as the legal basis for much anti-discrimination legislation.  You
|> > take away Roe v. Wade, you weaken the 12th.  You weaken the 12th, you
|> > make it difficult for sodomy to be legal.  Believe me, in judicial
|> > circles this is very important.
|> 
|> I'm not sure I find this exposition convincing.  It is my
|> recollection (and I hope that someone will correct me if it's wrong) that
|> in the Georgia sodomy law case, that the Supreme Court decided that
|> the Constitution does _not_ imply a right to privacy (and the weight of
|> precedent has prevented Roe vs. Wade from having been overturned as well).
|> 
|> It is because the Court does not recognize our rights that it becomes more
|> urgent that they be protected by law.
|> 
|> Now I am curious to know what exactly is the text which implies the
|> right to privacy.  Would somebody be willing to post it?
|> 

Well, there actually isn't one.  Mr. Limoncelli guessed at the 12th amendment,
but I checked the text of the U.S. Constitution, and that is the one that changed
the method for voting for President and Vice-President of the U.S.  (Before it,
the VP was the person who got the second-highest vote count in the presidential
election; after it, they were voted on separately.)

If I remember correctly, arguments about privacy are based on the 10th
amendment, which states (and I have the number and text right) that rights
no enumerated in the U.S. Constitution are reserved to the States or the people.

One of the ongoing issues is the right of privacy, because it is not
enumerated anywhere.  (It's a strict vs. loose constructionist battle; 
generally the former are conservative while the latter are liberal, but
not necessarily.)  The question is whether such a right exists.

As far as anti-discrimination legislation goes, I think that it relies
on the 13th (?) amendment, which states that all citizens of the U.S. are
citizens of the states in which they reside.  This gives the federal
judiciary the power to look into the states' policies, since the
citizenship of its residents becomes a constitutional question.

The separate parts of anti-discrimination issues (race, sex, national
origin, previous condition of servitude, religion, etc.) have different
sources.  Racial ones are constitutional (a Civil War amendment, but I
forget the number; it's in the range 13-16); that's why "separate but
equal" became an issue, but "equal" treatment was required.  Sex
equality is not explicitly in the Constitution, which is why there is
a push for an Equal Rights Amendment.  I honestly don't remember all
of the grounds for those lawsuits, but I think most of them are based
on Federal law, in the sense of bills passed by Congress, and not
case law of the Constitution directly.

(I hasten to point out that I am not a lawyer or a legal scholar, but
I do have the kind of brain that understands these arguments.  I
would be, by inclination, a strict constructionist.  I'd rather have
an amendment to the Constitution about the right to privacy than have
to derive it from the little it has to go on.)

Rather exaltedly (I like this kind of thing),
Julian C. Lander
jclander@mitre.org