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Geoff Gibson
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Posted: 19 June 2008 at 7:59am | IP Logged | 1  

The right to privacy is no more a "legal fiction" than freedom of association, expression or the right to not practice a religion.

What clause or amendment to the constitution articulates a right to privacy, Marc?  Freedom of association, expression and religion (which would including the right not to practice one) are articulated in the First Amendment.  The Right of Privacy is a legal fiction created by Courts. 



Edited by Geoff Gibson on 19 June 2008 at 8:11am
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Marc Baptiste
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Posted: 19 June 2008 at 8:15am | IP Logged | 2  

Geoff,

Show me where in the first amendment the right to association, expression and freedom of non-practice of religion are articulated?
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Matt Hawes
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Posted: 19 June 2008 at 8:22am | IP Logged | 3  

Forgive me if this has all ready been posted:

Muslim Women Rejected At Obama Rally:

http://news.aol.com/elections/story/_a/muslim-women-rejected -at-obama-rally/20080618155909990001?icid=100214839x12041733 55x1200181957

Any thoughts?

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Geoff Gibson
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Posted: 19 June 2008 at 8:23am | IP Logged | 4  

Here:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Interpretation is different from creation.  You have speech (intrepreted to include expression); free exercise of religion (interpreted to include the non-excercise); peaceably assemble (intrepreted to mean associate).  Where is privacy addressed?  How do you interpret any of these passages to include privacy rights?

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Marc Baptiste
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Posted: 19 June 2008 at 8:33am | IP Logged | 5  

Geoff,

The rights you listed as "ARTICULATED" in the First Amendment are nowhere to be seen.  They have been, as you pointed out,  INTERPRETED by the Supreme Court as penumbra rights based on the overall thrust of the First Amendment.  Similarly the Right to Privacy is considered a prenumbra right under various other amendements --- not the least of which is the Ninth Amendment as posited by Justice Harlan in Griswold. 

The founders were very clear in their writings that in no way was the Bill of Rights supposed to be the ONLY rights the American people were guaranteed under the Constitution.

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Joe Zhang
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Posted: 19 June 2008 at 8:42am | IP Logged | 6  

If they seated them, FOX News would have used it as "proof" that Obama is keeping a Muslim harem. 
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Scott Richards
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Posted: 19 June 2008 at 8:46am | IP Logged | 7  

Muslim Women Rejected At Obama Rally

I think his campaign needs to be more careful.  There are enough things people blast him about without his campaigners needlessly adding fuel to the fire.  They were more concerned over image than what's right.  Not a good message to send.

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Scott Richards
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Posted: 19 June 2008 at 8:52am | IP Logged | 8  

If they seated them, FOX News would have used it as "proof" that Obama is keeping a Muslim harem.

It was a damned if you do and damned if you don't scenario.  Unfortunately, for his supporters, they erred on the wrong side.  Had they seated them, only the people who weren't going to vote for him anyway would have been up in arms.  By not seating them it could disenfranchise people where were previously supporting him since they might see it as actions not matching words.



Edited by Scott Richards on 19 June 2008 at 8:52am
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Geoff Gibson
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Posted: 19 June 2008 at 9:12am | IP Logged | 9  

Marc:

You caught me for not having the exact wording of the first amendment memorized.  But it does not change my point and by your post you help make my point.  Interpretation of enumerated rights is one thing.  It is an analysis of what the law means.  For example: Freedom of Speech includes expression.  Freedom of expression is not created from the overarching shadow of various amendments.

Creation of a constitutional right not found in the constitution is significantly different from the interpretation of an enumerated right.  The right of privacy found in the Griswold case was created by stitching together other enumerated rights.  "Pneumbra" means shadow -- the shadow cast by the guaranteed rights creates the right of privacy (although the Court has moved away from this analysis in the years since the Griswold/Roe Courts).  The Court itself by noting that a right of privacy existed from a Pneumbra of rights did not run away from the fact that the right, as the basis for the Court's holdings in both Griswold and Roe is a "legal fiction." 

The 9th amendment, refered to somewhat derisively by Robert Bork as an "inkblot" provides that: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.  Accordingly, the right of privacy is not guaranteed by the amendment.  Instead the amendment acts to protect those rights that are not expressed.  Including rights, like the right of privacy, that are created by judicial fiat.  As Justice Douglas noted in Roe's companion case Doe v. Bolton, the ninth amendment does NOT create federally enforcable rights.  The amendment is intended to ensure that simply because rights are not enumerated they are not also protected.  But it does not make those rights a constitutional right. 

So yes there is a right to privacy, but a constitutional right to privacy is a legal fiction.

 

 



Edited by Geoff Gibson on 19 June 2008 at 9:15am
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Michael Roberts
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Posted: 19 June 2008 at 9:14am | IP Logged | 10  

This thread only has 2100+ views. Did it hit the limit and wrap around again?
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Matt Hawes
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Posted: 19 June 2008 at 9:22am | IP Logged | 11  

 Michael wrote:
...Did it hit the limit and wrap around again? ...

Something must've happened, as there are more replies than views according to the numbers given.

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Donald Miller
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Posted: 19 June 2008 at 9:29am | IP Logged | 12  

Well some do seem to reply without reading so...

Don


Edited by Donald Miller on 19 June 2008 at 9:30am
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