As always, you can find the Dobbs v. Jackson decision here.
Also, you can find the Roe v. Wade decision here.
Paragraph 3 of 5
Sentence 3 of 6
The next sentence involves ideas that will take some investigation at some point. For now I’ll just make sure they are what they say they are.
“Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated. Ibid; see also McDonald v. Chicago, 561 U. S. 742, 763–766 (2010) (majority opinion) (discussing incorporation).”
This sentence contains several related ideas that seem to divide into three claims:
- “Another [possible origin Roe suggested to a right to abortion] was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions . . .”
- “. . . and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment . . .”
- many other Bill of Rights provisions had by then been incorporated [into the Due Process Clause of the Fourteenth Amendment].
So let’s take them one at a time:
“Another [possible origin Roe suggested to a right to abortion] was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions . . .”
We already covered the relevant passage back in the Dobbs Sentences #5 post that confirms this claim. Just for the sake of convenience, here it is again:
“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 . . .”
The second claim introduces a new (to me) term:
“. . . and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment.”
This claim is easy enough to confirm as true, which is good because it seems this concept of “incorporation” as it relates to the Due Process Clause of the Fourteenth Amendment will be central to the discussion ahead.
Most of this claim is supported by the same passage that supports the first claim, but the addition of the concept of “incorporation” requires us to reference the McDonald v. Chicago decision. That decision contains many references to incorporation, but the passages that explain it best begin on page 761 (not 763 as the citation suggests). Here are some excerpts from that section:
“An alternative theory regarding the relationship between the Bill of Rights and §1 of the Fourteenth Amendment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights.”
As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron.[Footnote 9] Adamson, 332 U. S., at 72 (dissenting opinion).[Footnote 10] Nonetheless, the Court never has embraced Justice Black’s “total incorporation” theory.
While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments.
This claim seems to be true, though I’m open to correction on that. I’d need to read the cited material much more closely to understand it, but for now it’s enough to acknowledge that this claim is true. Which brings us to the third claim:
“many other Bill of Rights provisions had by then been incorporated [into the Due Process Clause of the Fourteenth Amendment].”
The third claim is supported by the section in McDonald on page 763. Here are some of the cases listed there:
- Gideon v. Wainright, 372 U. S. 335, 341 (1963)
- Malloy v. Hogan, 378 U. S. 1, 5–6 (1964)
- Pointer v. Texas, 380 U. S. 400, 403–404 (1965)
- Washington v. Texas, 388 U. S. 14, 18 (1967)
- Duncan, 391 U. S., at 147–148
- Benton v. Maryland, 395 U. S. 784, 794 (1969)
There’s a lot more to all of these claims than just whether they are true, but it’s a start, and so that’s why I’m starting with this. I can move on to deeper analysis later.
These claims are confirmed as true:
Cynical Jason 