Thomas and Unenumerated Rights

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Journeybound
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Thomas and Unenumerated Rights

Postby Journeybound » Sat May 08, 2010 11:01 pm

Okay, its killing me. I took my Con Law final last week, and I have been stewing over one of the questions. Does Thomas believe in unenumerated rights? I'm pretty sure that he doesn't. However, the only text that I could find to back it up was his statement that the "right to abortion" doesn't exist, which he stated in a concurrence in judgement in Carhart. And he joined in the dissent with Scalia in Casey. However, in that dissent, Scalia said that unenumerated rights exist if they are "deeply rooted in the traditions" of American society. So... where does that leave Thomas? Any ideas? Was there something I missed? Thanks =p

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Matthies
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Re: Thomas and Unenumerated Rights

Postby Matthies » Sat May 08, 2010 11:05 pm

Journeybound wrote:Okay, its killing me. I took my Con Law final last week, and I have been stewing over one of the questions. Does Thomas believe in unenumerated rights? I'm pretty sure that he doesn't. However, the only text that I could find to back it up was his statement that the "right to abortion" doesn't exist, which he stated in a concurrence in judgement in Carhart. And he joined in the dissent with Scalia in Casey. However, in that dissent, Scalia said that unenumerated rights exist if they are "deeply rooted in the traditions" of American society. So... where does that leave Thomas? Any ideas? Was there something I missed? Thanks =p


Don't. Just stop. No good will come of it.

LateNight
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Re: Thomas and Unenumerated Rights

Postby LateNight » Sat May 08, 2010 11:08 pm

Is the question whether Thomas believes in unenumrated rights? Or unenumerated Constitutional rights? Big time difference...

Even Scalia believes in a right to privacy, he just doesn't believe that the Constitution protects it.

LateNight
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Re: Thomas and Unenumerated Rights

Postby LateNight » Sat May 08, 2010 11:12 pm

To give you a good grasp on this type of ideology I would read Black's dissent in Griswold. I think it it can point you in the right direction. Black believes in a right to privacy, but he doesn't believe the Constitution protects that right; then he explains why.

Just a -03L here though.

Journeybound
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Re: Thomas and Unenumerated Rights

Postby Journeybound » Sat May 08, 2010 11:14 pm

I believe that the question was unenumerated fundamental rights, which would be protected by the constitution - if found. I guess I'm just wondering if he ever flat out rejects them, like he did with the dormant commerce clause.

And yeah, I probably should drop it. But it kept me up last night...

LateNight
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Re: Thomas and Unenumerated Rights

Postby LateNight » Sat May 08, 2010 11:15 pm

Why would fundamental rights be protected by the Constitution?

LateNight
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Re: Thomas and Unenumerated Rights

Postby LateNight » Sun May 09, 2010 2:35 am

Take the opposite to the answer that you inevitably provide that the Constitution inheriently protects those rights, and you likely have Thomas's position.

For his view on why the 14th doesn't incorporate the Establishment Clause you would have to ask him. I can't wait to see if he thinks that the 14th incorporates the 2nd, but not the 1st.

:-P

solidsnake
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Re: Thomas and Unenumerated Rights

Postby solidsnake » Sun May 09, 2010 3:26 am

Pretty sure Thomas would support Curtiss-Wright or Perez.

Thomas and Scalia both are guilty of making teleological arguments to justify an inconsistent jurisprudence that supports whatever immediate partisan end advances their respective first principles.

LateNight
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Re: Thomas and Unenumerated Rights

Postby LateNight » Sun May 09, 2010 4:16 am

This has inspired me to look through some of Thomas's concurrences and dissents. I think a lot could be gleamed from them...

Needless to say the guy is, without a doubt, the most radically out of step Justice (in terms of the modern-era) to ever sit on the Court. His opinions certainly read like stuff from the 1800's. Thomas makes Renquist, who believed in a right to privacy and that other rights were protected by the Ninth, look like a flaming liberal.




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