Overlapping Rights

The author talks about his book Madison's Music and answers questions form Justice Sotomayor.  I found the book somewhat lacking though found some useful insights as would those who listen to the discussion, including his brief summary in the beginning of his thesis.  It is useful to try to find positive aspects of something -- see how the two sides agreed with this supportive article on teen parents though dividing all the same.  

And, his insight as to the flow of the First Amendment (individual conscience to expression to ultimately governmental action) alone is worthwhile.  The differences do arise though and that leads to debates. Still, repeatedly, I find the "differences" can be spun in various ways. The gotchas here often require certain glosses. The author, e.g., noted he opposed substantive due process because it was too open-ended, but supports a substantive usage of the Ninth Amendment. The application of substantive due process in practice (Justice Harlan's concurrence in Griswold is apt here) is not open-ended either.  Also, there tends to be overlap:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," "basic civil rights of man," and "[r]ights far more precious . . . than property rights." "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."  The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment,  and the Ninth Amendment.

This is from a discussion of fathers' rights in Stanley v. Illinois, which was decided before Roe v. Wade and are among the cases that in some fashion protect "substantive due process."  There is sometimes a concern for nicety, a concern that there would be a redundancy if different provisions overlap.  But, the First Amendment itself provides overlap. Free exercise rights, e.g., often can be expressed as free expression or a right of assembly/association.  McDaniel v. Paty, involving a minister being blocked from government service was unanimous in result, but the justices split at least three ways on the reason why it was wrong.  Basic principle and zones of agreement should not be missed over debate over details here.

The case also touches upon an understanding that certain personal rights -- particularly after the New Deal era -- are given more protection than economic matters. This requires some general judgment on the Constitution as a whole and the lessons of history.  As the author notes, the bare words themselves will not be enough here, but also underlining understandings that are in part seen by looking at the thing as a whole.  And, no absolute rules work here either, just as the word "Congress" or "no" should not be applied too strictly (e.g, Presidents are controlled too) regarding the First Amendment.  Sometimes, property rights are particularly important.

And, these family right cases leads me to Levy v. Louisiana, which gave some rights to illegitimate children, who traditionally were in effect seen as "bastards" that as "illegitimate" suggests was outside of the protection of the laws.  The opinion notes: "We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being." A law review article regarding the rights of illegitimates under federal law is cited, one that I never could find.  My interest was that this provides an intriguing definition to the word "person" that has clear application to abortion.  Justice Clark's law article on abortion was later cited by the author of that opinion: "The phenomenon of life takes time to develop, and, until it is actually present, it cannot be destroyed."

But, the question of the "being" of the unborn, which is deeply disputed in this country especially as a matter of legal and moral meaning, is largely avoided in abortion cases. This is somewhat understandable though it does help explain why the line drawing there is formulated.  As Justice Stevens explains there: "there is a fundamental and well-recognized difference between a fetus and a human being."  Some argue that a fetus (and an embryo) is in the relative sense a human "being" too though even there rarely are truly absolutist about it as seen in let's say cases of rape. 

The debate will divide, but even there, there is some agreement.