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January 05, 2005
Stopping crimes by preventing the birth of victims?
I'm fascinated by this item from Drudge today about a woman who was ordered to stop having children: ROCHESTER, N.Y. (AP) - A Family Court judge who last year stirred debate about parental responsibilities ordered a second drug-addicted woman to have no more children until she proves she can look after the seven she already has.The ACLU has weighed in on the side of the mother, citing the "right to procreate": O'Connor said she was not forcing contraception or sterilization on the mother, who had children with seven different men, nor requiring her to get an abortion should she become pregnant. But she warned that the woman could be jailed for contempt if she has another child.Government in the bedroom? Where have we heard that before? What's next? Heterosexual rights? What fascinates me is that the right to procreate seems so basic that no one thought to list it in the Bill of Rights. Sure, they had free speech, freedom of religion, the right to keep and bear arms, freedom from illegal search and seizure, but that was because these were all freedoms which governments were known at the time to encroach, and the founders wanted a government which could not do that. But they recognized that future governments might attempt to encroach other rights not then recognized or even contemplated. Like the right to shave your face in the morning, or the right to have babies. Or not have babies. There's a split among so-called "strict constructionists" between those who see the Bill of Rights as a specific, delimited list, and those who see it as an incomplete list of the rights the founders deemed were most paramount, never intended as a restriction of rights. I've never been able to understand what it is that strict constuctionists fail to understand about the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.One of the drafters, James Madison, made it quite clear what this meant: RIGHTS RETAINED BY THE PEOPLEI don't see how else a "right to procreate" might be said to exist. (In this respect, the often quoted "laws of nature and of nature's God" phrase is as instructive as it is redundant.) That's not to say that a hard core crack mother might not be able to have her right taken away in the same way (or for similar reasons) that someone might lose his right to keep and bear arms (insanity or incapacity), but forfeiting a right (assuming due process) is not the same thing as the right not existing in the first place. I'm not sure that these unlisted rights should have to be court-divined from the much-criticized "emanations from the penumbra" of privacy of Griswold v. Connecticut or Roe v. Wade either. In my view, the Ninth and Tenth Amendments shouldn't require judicial activation of that sort. If the government doesn't have the power, it doesn't have the power. In my view, the very existence of the 18th Amendment (prohibition of alcohol) reveals that there was a time -- comparatively recent in our history -- when it was recognized that the type of federal regulation now recognized as routine would only be permissible by constitutional amendment. Under the Tenth Amendment, the federal government had no specified power to regulate alcohol, the possession and consumption of which was one of the unenumerated Ninth Amendment rights nonetheless retained by the people. The extent to which a state can limit (or expand) rights in the absence of federal government power is often very problematic -- and hence often treated in a contradictory manner. As I've pointed out before, many of those who'd uphold a state's right to limit an asserted right (Lawrence v. Texas) would oppose a state expanding rights (also to control one's body) when the federal government has spoken (Ashcroft v. Raich). In the case of the crack-addicted mother, the judge apparently issued a "do-not-procreate" order absent any statutory authority forbidding crack-smoking mothers from procreating. For what it's worth from my own moral standpoint, I don't think she should be smoking crack while cranking out babies. But there are a lot of things people shouldn't be doing that they do anyway; that doesn't necessarily give the government the right to regulate them. She's already violating the law by smoking crack; what on earth makes this court think she'll obey an order? Hasn't anyone thought of prosecuting her for child abuse? (If she's in prison, she can't have more children, which would appear to moot further discussion of the "right to procreate.") I'm reminded of the case Dennis reported yesterday. Perhaps it makes more sense to prosecute the crack-smoking mom under the same legal theory that would allow prosecution of the mom who had her boyfriend beat her baby with a baseball bat. Couldn't that mom have been ordered not to procreate too? And what about the abusive parents who wait till the babies are born, then beat, scald and kill them? Why is it different if these crimes are committed before birth? Does the state have a right to prevent future harm by issuing "do-not-procreate" orders? Or must society wait for more victims? (I think I better stop here, because I've raised more questions than I can answer.) posted by Eric on 01.05.05 at 09:30 AM
Comments
Excellent once again. Yes, the Ninth Amendment clearly states that we retain rights not enumerated in the other Amendments constituting the Bill of Rights. We retain rights, they are not granted by a government. Those of us who are theists of one sort or another would argue that these inalienable rights are endowments from a Creator. It is unfortunate that Justice Douglas felt compelled to speak of "emanations from penumbras", thus subjecting the language of his opinion in Griswold vs. Connecticut to ridicule by totalitarian demagogues decades later. At the time however, such ridicule was still being focused instead on the invocation of a Swedish socialist sociologist in Brown vs. Board of Education. I have long thought that Justice Harlan's dissent in Plessy vs. Ferguson was plain enough. The term "strict constructionist" originally mean one who narrowly construes the powers of government, especially the federal government, not the rights of the individual. The meaning has been switched. I have long held that it is meaningless to speak of "liberals" vs. "conservatives" when discussing judicial philosophy. The real division is between individualists vs. collectivists: those who see the Constitution as islands of strictly limited government powers surrounded by an ocean of inalienable individual rights vs. those who see it as islands of explicitly granted individual rights surrounded by an ocean of unlimited government powers. Steven Malcolm Anderson (Cato theElder) the Lesbian-worshipping man's-man-admiring myth-based egoist · January 5, 2005 01:46 PM |
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In this case there's a conflict between several different rights. The mother has the right to have children as she pleases... but her children have the right to be loved and taken care of.
Not to mention that the taxpayers have a right to be incensed to have to foot the bill for this woman and her kids.
I think the kids' needs trump the mother's.