Scarborough: Abortion is a "specifically enumerated constitutional right," you know

I do not think that word means what he thinks it means. Joe Scarborough tears off a rant about constitutional objections to Joe Biden’s vaccine mandate by citing the polls, which is a non sequitur in the first place, even if Joe’s correct about their popularity. In the next breath, however, he lashes out against the same people opposing a “specifically enumerated constitutional right” to abortion.

Er … who wants to tell him?

No, my friend, abortion is not a “specifically enumerated right” in the Constitution. How do we know that? Because the word “abortion” has no mention in it the document. At all. “Enumerated” means a right explicitly stated, such as the right to free speech, the right to keep and bear arms, the right to free expression of religion, and so on. The first seven amendments of the Constitution are a list of enumerated rights for individuals, and we see those appear again in the 13th, 14th, and 15th Amendments, among others.

Not even the court’s controlling decision in Roe argued that abortion was a specific and enumerated right, by the way. They declared that laws forbidding abortion violated a constitutional right to privacy, which itself isn’t explicitly enumerated, either. That was based on the Fourth Amendment restriction on unreasonable search and seizure, as well as an incorporation argument involving the 14th Amendment. This was the famous “penumbra” argument on privacy, from which the court derived a right to an abortion:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra. This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

This makes abortion a right that is very much not “enumerated.” It is, in fact, highly synthesized and only called into existence through legal and logical leaps. Given that this has been on record for over 48 years, it’s a bit surprising to hear anyone confuse this logic with “specifically enumerated rights.”

What about the popularity? Joe’s correct on that, at least in the CNN poll that Allahpundit just covered. However, popularity doesn’t confer constitutionality. In fact, the Constitution and especially its Bill of Rights were explicitly designed to withstand “popularity,” ie, mob rule. Biden’s mandates might well be popular and still be unconstitutional, at least as an exercise of federal power. Citing polls does not answer the constitutional argument, and one has to assume that this argument got made because there really isn’t a good answer to the constitutional objections being raised by states to Biden’s mandates.

At any rate, whether or not the mandates are a good idea, they’re still constitutionally suspect — as is Roe, and especially the idea that abortion is a “specifically enumerated right.”

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Jazz Shaw 7:31 PM on October 02, 2022