Comments: I knew it would come

Is there a constitutional right to reproduction? I know about the 14th amendment privacy argument, but privacy can be invaded with cause. Whatever you think of the fetus-as-person argument, they are really being told that they can not endanger any more children, which isn't unreasonable. People can be ordered to stay away from children, if they pose a danger; this order just extends that to require that they not make any more the court would have to tell them to stay away from.

Frankly, if we could figure out a fair and reasonably standard by which to do it, we should do this more often. Unfortunately, as with the death penalty, I despair of a human justice/social welfare system having the kind of good judgement to have this power, so I'm not actually in favor of it. Yet.

Posted by Jonathan Dresner at May 8, 2004 12:04 PM

It seems obvious to me that people have a right to have children. Go back to Locke and Hobbes and consider people in their Natural State. Can anyone imagine a Natural State in which people are not free to have kids? Hobbes then suggested that life in the Natural State is nasty, brutish and short, therefore people come together in societies, and surrender a few rights in exchange for the safety offered by the social contract of society. But can anyone imagine that giving up the right of children was part of any social contract, let alone the American social contract?

On this issue it is important to remember why the Federalists fought against the Bill Of Rights: Americans, they said, had so many rights that those rights could never be set down in a simple list. The Anti-Federalists, however, worried about the lack of explicit limits on a strong national government, and so they insisted that certain rights be made stronger by giving them explicit mention. However, it is important to remember, the intent of the Constitution, and in particular the Bill Of Rights, was to ensure a maximum of freedoms, not a minimum of freedoms. Both the Federalists and the Anti-Federalists would have recoiled in horror from the idea that no rights exist save those that are explicitly mentioned in the Constitution and Bill Of Rights.

Rather, the loss of traditional rights is what needs explicit mention, either in English Common Law, or in the Constitution and Bill of Rights. Therefore, till we have an amendment that explicitly takes away the right to children, we can assume the right to children. Unless, of course, so can really imagine a Natural State in which people are not free to have children.

Posted by Lawrence Krubner at May 9, 2004 11:57 AM

I'm really conflicted about this ruling (BTW it happened in my "back yard" so to speak). I can't think of a single reason why this was not the right ruling, given this couple's history. By the same token, I can't think of a single defense of the ruling that would withstand further constitutional scrutiny by apellate courts.

I almost hope that there is some novel way that this can be upheld, but I fear the slippery slope that the right to privacy would face in the existence of such a precedent.

Damn.

Posted by Charles2 at May 10, 2004 09:47 AM

Granting all of the arguments about Constitutional freedoms that Lawrence Krubner made, I still have doubts.

I think this ruling will be upheld in a court of law.

There are few if any of the "rights" granted to us by the Constitution or bestowed in the "Natural State" that our society has not abridged or curtailed at one time or another.

We have removed life, liberty, and the pursuit of happiness from the power of thousands. We have abridged voting rights, curtailed freedom of speech, and made every attempt to interfere with freedom of the press.

In this case, unless someone is arguing that the right to "have" children is separate from the right to "raise" children, the history of state intervention in domestic child-rearing cases already provides ample precedent for the state's power to decide someone is an unfit parent.

Removing all children from a home when some children have been abused and some have not also establishes a precedent for the state deciding in advance that someone will be unfit to raise a child.

I dunno. I'm not a lawyer, but I think the decision will stand.

Posted by Anne at May 10, 2004 12:17 PM