-----Original Message-----
From: Charles Brown <CharlesB at CNCL.ci.detroit.mi.us>
To: lbo-talk at lists.panix.com <lbo-talk at lists.panix.com>
>Nathan is correct that the right to an abortion was derived from a socalled
>penumbra or shadow of the actual wording of the Amendments. In other words,
>there are no actual words "right to privacy" , but the Court derived one
>from the conceptions of freedom from illegal search and seizure and Due
>Process , which protect from unwarranted government intrusion into an
>individual's privacy.
For fans of the esoterica of the 14th Amendment, such as why the 1964 Civil Rights Act was passed under the authority of the Commerce Clause rather than on federal requirements of equal rights, yesterday's decision on welfare rights is apparently quite radical, in that it based the "right to travel" of welfare recipients on the 14th Amendment's guarantee that no state will "abridge the privileges or immunities of citizens of the United States."
The reason this is significant is that the "privileges and immunities" clause was declared basically empty of substantive meaning in the years after the Civil War, a major reason segregation could be reintroduced across the region. It is precisely because "privileges and immunities" was so empty that the Courts used Due Process and Commerce Clause levers to ratify the gains of the Civil Rights movement.
So this could be an interesting trend in the gamesmanship of legal scholarship and rhetoric, although as I've noted, I have serious doubts about the meaning of such words compared to mass movements.
Up until 1936, the words of the Constitution meant there could be no national laws regulating wages and workplace conditions. Magically (i.e. following a landslide victory for Roosevelt and sit-in strikes across the country), the Supreme Court suddenly "found" that the text actually made such laws perfectly Constitutional.
Not a word of text was changed in the Constitution during the 1930s (other than repealing Prohibition), yet our whole constitutional system was transformed more radically than during any period other than the Civil War.
Which goes to my point that "law" is not about the words in the text but their interpretation and enforcement under real existing systems of government and state power.
-- Nathan Newman