I'm not as familiar with French history as I am with American history, but the French Declaration of Rights was not a constitution.
It was first written as a standalone document, that's true. But it was included in the constitution of 1793, and it has been included by reference in every French constitution since Napoleon III (1855 I think). France has run through 15 different constitutions since 1791, so yes, their constitutional history is a lot messier than yours. But the universal declaration has been part of the constitution since the 1850s. And as I understand it, almost all federal Bill of Rights cases happened later than that.
Legitimate government powers are those powers specifically delegated by the people to the government.
While most state constitutions contain language to this effect, I wasn't aware that Hamilton's federalist paper addressed state constitutions too, or that the federal constitution does with its concept of enumerating delegated powers. I am still not convinced that this is a proper application of the federal constitution to state constitutions.
The point of my previous response was to show that the people ratified the Constitution and organized the general government of the United States of America--a government of limited powers with checks and balances to guard against oppression. When the people organized the federal or national republican form of government, they RETAINED all their rights--they did not surrender their rights to the general (federal/national) government. Accordingly, it was unnecessary for them to list the rights they retained. Why provide that the United States government shall not abridge the people's freedoms when no power was delegated to the general government to abridge those freedoms in the first place?
The United States Constitution did NOT organize state governments. As a general rule, the United States Constitution was a limitation on FEDERAL powers, not state powers. To remedy STATE abridgments of civil or political rights, the people had to rely on interpretations of their own state constitutions to limit the powers and reach of their STATE governments.
The history of our nation AFTER the United States Constitution was ratified demonstrates significant strife between the "general" (federal/national) government and state governments with respect to slavery and states' rights. This continuing strife led to the southern states seceding from the union and the civil war.
AFTER the civil war and the ratification of the post-civil war amendments to the United States Constitution, the United States Constitution limited STATE powers. To remedy STATE abridgments of civil or political rights, the people could now invoke not only their own state constitutions, but also the United States Constitution to limit the powers and reach of the STATE governments.
Due to the very nature of OUR government that derives its power from the PEOPLE for the purpose of securing liberty, it is unnecessary for the people to tell the government that it may not arbitarily infringe liberty when it wasn't granted the power to arbitrarily infringe liberty in the first place. To arbitrarily infringe liberty is not a legitimate government end nor a proper means to serve a legitimate government end. For a statute to be constitutionally valid, it must serve a LEGITIMATE end and the means must be necessary and proper.
It is of no significance to the interpretation of the U.S. Constitution that the French people drew up a declaration of rights and forced their King to sign it under duress. They did so because the KING would otherwise have absolute power over them. Therein lies the vital difference between what the French did and what the Americans did. The Americans did not create a government of absolute powers from which "we the people" were required to declare exceptions.
WE THE PEOPLE fought for our freedom from oppression and tyranny and we retained ALL OF OUR RIGHTS--we surrendered nothing--when we formed a government of limited and delegated powers. It wasn't necessary for us to specifically declare or make a list of our rights in order for ALL LIBERTY to be secured against tyranny. The Constitution was never intended to be a charter of postive benefits. It doesn't CONFER rights--it LIMITS government.
The Constitution is a charter of negative liberties; it tells the state to let the people alone. See, e.g., Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982). The Constitution secures ALL LIBERTY against government oppression. PRE-civil war, that U.S. Constitutional security was generally against U.S. government oppression. POST-civil war, that security was extended against STATE government oppression.
Accordingly, any argument that a right or liberty that is not explicitly mentioned in the Constitution it is not secured by the Constitution is completely without merit. The Ninth Amendment is a rule of construction that prohibits the government from interpreting the Constitution in such an despicable manner.
The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests.
1) Is it your opinion that all restrictions to abortion prior to the third trimester are arbitrary and oppressive? 2) Hypothetically, suppose the Supreme Court had decided the opposite of what it actually decided: That embryos have a right to live, that the people never delegated powers to the government to arbitrarily or oppressively permit the killing of embryos, and that it therefore violated the federal constitution if states permitted abortion. Therefore, continues our hypothetical Supreme Court, abortion has to be illegal except in enumerated cases as rape or incest or danger to the mother's life, when it is allowed. Would you stand by your points about delegated powers, substantive due process, constitutional limitations on the elected branches etc., even though the court had applied them in such a way as to to come out the opposite way?
(1) The state may regulate the medical profession. As with ALL medical procedures, the state may require that a patient's medical decision is informed. So long as state regulation of the medical profession does not place an undue burden on an individual's liberty interests, the state regulation passes constitutional scrutiny.
(2) Your hypothesis is essentially based on a wrongful assumption that a woman's voluntary termination of a pregnancy is STATE action or that the state's failure to protect the fetus is a violation of the Constitution. It is not.
The due process clause provides that a state shall not deprive any person of life, liberty, or property, without due process of law.
The state is not using its power to force a woman to obtain an abortion. There is no state action that is depriving the fetus of its interest in life.
If your argument is that the state is depriving the fetus of its interest in life by failing to protect that life, case precedent firmly establishes that the government has no affirmative duty under the due process clause to protect any person. The Supreme Court is without power to impose that duty on a state to affirmatively protect life through state laws.
There is no state action upon which an alleged due process claim may be asserted and state inaction is not unconstitutional. Accordingly, it is legally impossible under the due process clause for the Supreme Court to find that states have "violated the federal constitution if states permitted
If there is any protection at all for the fetus's alleged right to life under the Constitution, it must come from the equal protection clause: Nor shall any state deny to any person within its jurisdiction the equal protection of the laws.
If a fetus from the moment of conception is deemed a person entitled to equal protection under the laws, then the intentional or knowing destruction of that life would be murder; the reckless destruction of that life would be manslaughter; and the negligent destruction of that life would be negligent homicide. Anti-abortion laws would be discriminatory and insufficient to protect the fetus's interest in life in that those laws would not provide fetus's with similar protections provided to other potential murder victims.
Accordingly, in order for a woman to avoid a conviction for murder, she would have to claim the abortion was for self-defense. In order for a doctor to avoid a conviction for murder, he would have to claim the abortion was for the defense of others (the woman's life). It would not be sufficient to claim that the abortion was performed to save the woman's life because the pregnancy would carry with it significant risks at some point in the future. Before one is allowed to take the life of another in order to save one's own life or the life of another, the law requires an immediate threat wherein the decision to kill is made under split-second circumstances.
If a fetus is a person entitled to equal protection of laws, think of all the possible ramifications and ask yourself if the "original meaning" of the equal protection clause was meant to protect a fetus as a person. A fetus would be entitled to inherit and to own property on the same terms and conditions as all other persons. If a woman in her first trimester slips and falls on an icy sidewalk in front of a store and miscarries as a result of that fall, the owner of the store would be criminally liable for manslaughter or negligent homicide of the fetus, etc. A life insurance company be required to insure the life of a fetus on the same terms and conditions as a parent's other children and would be required to pay death benefits in the event of miscarriage.
I see the potential for lots of problems in declaring a fetus to be a PERSON entitled to equal protection under the law. The fact that no state has ever treated a fetus as a person with respect to the general applicability of its state statutes certainly belies any legitimate claim that a fetus is a person entitled to equal protection of the laws.
In short, a court would NEVER rule that a state violates the federal constitution if a state "permits" abortion. Abortion will never be a fetus's right to life or equal protection issue. It will always remain within the context of a woman's liberty interest to determine her own procreative destiny. A woman's interest in her own procreative destiny must be secured against all oppressive government intrusions. Otherwise, if the state had a legitimate interest that would justify prohibiting abortions and trumping the woman's interests; it would also have a legitimate interest that would justify requiring abortions and trumping the woman's interests. Most of us would agree that a forced abortion in the interest of population control would be oppression, pure and simple.
Even if a state would attempt to oppress women and deny them the liberty to choose for themselves if they will bear and beget children, this foolish oppressive attempt won't stop women from choosing for themselves. Even if they revert to the days of using sharpened sticks, wire hangers, poisons, or throwing themselves down flights of stairs to induce abortions, women will retain the right to decide for themselves and will continue to get rid of pregnancies that they don't want even if doing so kills them in the process.
Government oppression is wrong--and it is especially wrong when one considers the alternatives that people will seek out to escape the chains of oppression. Whether through basement printing presses or back alley abortions, people do not tolerate oppression and find the means to exercise their liberty interests. Why should the people have to find alternative means to thwart oppression when the Constitution was designed to secure their individual liberty interests against government oppression? The Supreme Court is the guardian of the Constitution and I expect the justices to rule in favor of liberty and to stomp out oppression in whatever form it takes.
The judicial branch of government is the neutral branch. If government conduct or the enforcement of a statute is unreasonable, arbitrary, or oppressive, the injured individual may invoke the power of the court and seek justice. That's the benefit of our constitutional republic: Liberty and justice for all.
Tell it to the victims of slavery -- the same slavery judicial-review-less Britain abolished generations before America did, and which the Supreme Court tried to uphold at the time, invoking substantive due process. (Sorry, that was an old one -- you must be hearing it a lot.)
I think we had a very long and bloody civil war on account of adherence by the southern states to the concept of slavery and the landscape of our constitutional jurisprudence following the ratification of post-civil war amendments was changed forever.
On what grounds would the mall sue you? We can't discuss whether you have a valid defense to a claim until we know what the claim is.
Well, on which grounds would a mall in the segregated South have sued a black guy who used the white's toilet? [Thinking ...] On reflection, they probably wouldn't have. Instead, their security personel would have thrown him out, and he would have sued for violation of his equal protection rights (and perhaps liberty rights.) So let's say this is how it works in our case about the man in the woman's toilet. And let's say it's not a mall, it's a government office building, so the law doesn't cut the building's owner any slack on liberty of contract grounds.
So the man who works in a government office building uses the woman's toilet; the cleaning lady calls security; security throws him out. The man sues for violation of 5th and 14th amendment rights, arguing that gender-segregated toilets are as constitutionally suspect as race-segregated ones. Does his case have a chance of prevailing?
What if it's an unlocked facility with several stalls with doors, several sinks, and mirrors, and I'm standing in front of a mirror with my skirt hiked up to my waist while I'm straightening my skewed and uncomfortable panty hose. Is your hypothetical man in the ladies bathroom to straighten his panty hose too? I can't analyze the situation until all the facts are in.