Is burial a constitutional right?

[Paul Kemp]

Inspired by this thread: https://uselectionatlas.org/FORUM/index.php?topic=174508.0

Particularly this post:

Because he was a citizen and a common criminal like any other person, and has a right to burial. He has (had) constitutional rights, you know.

[Antonio the Sixth]

In order to be a constitutional right, it would have to, you know, be mentioned in the Constitution...

[Grumpier Than Uncle Joe]

No, but you're probably breaking a great many state laws leaving a body laying around too long.

[True Federalist (진정한 연방 주의자)]

Yes and no.  In the sense that the choice of burial over other methods of treating a corpse is affected by religion it certainly is a right, so the government could not ban the practice of burial.  But not as in the sense of graveyards being unable to refuse to accept a corpse.  Of course, if graveyards were included in the list of "public accommodations" in Title II of the Civil Rights Act, there would be a right, but not a constitutional right, but a legislative right granted under Congress' power over interstate commerce.  Certainly the Tamerlan Tsarnaev case shows that burial is interstate commerce.

[Torie]

The question is not focused enough. If you mean, is it Constitutional to prohibit your body from being buried anywhere, on private land, subject to reasonable regulations, yes probably it is not. Cemeteries are a  waste of land to me, but I digress.

[Blue3]

In order to be a constitutional right, it would have to, you know, be mentioned in the Constitution...

9th amendment.

Right to burial has been recognized for a long time... for all the barbarism of the ancient world, like at Antigone or the Illiad.

The person is no longer in there. The family has the right to bury or cremate the body (or try some of the newer forms like compressed into a diamond or cryogenically frozen). And if there is no family or friends to claim the body, it still needs to be dealt with with respect.

[opebo]

Cemeteries are a  waste of land to me, but I digress.

They potentially do a lot of 'good' in reminding people of the extreme brevity of existence.  Of course reminding people of that would tend to increase crime and revolution, and radically reduce 'work-ethic', so for the Interests of Power, you're probably right.  Hide away the reality of the situation.

[Antonio the Sixth]

In order to be a constitutional right, it would have to, you know, be mentioned in the Constitution...

9th amendment.

Ah right, that one.

The 9th Amendment is probably the stupidest constitutional text ever written. It's meaningless bullsh*t. Saying "the people have more rights than those we have just enumerated, but we won't tell you what these rights are" either means nothing at all or it means the people have whatever rights a judge arbitrarily decides they have.

[opebo]

The 9th Amendment is probably the stupidest constitutional text ever written. It's meaningless bullsh*t. Saying "the people have more rights than those we have just enumerated, but we won't tell you what these rights are" either means nothing at all or it means the people have whatever rights a judge arbitrarily decides they have.

Actually its great! don't you like having rights?

[Antonio the Sixth]

The 9th Amendment is probably the stupidest constitutional text ever written. It's meaningless bullsh*t. Saying "the people have more rights than those we have just enumerated, but we won't tell you what these rights are" either means nothing at all or it means the people have whatever rights a judge arbitrarily decides they have.

Actually its great! don't you like having rights?

"Rights" are limitations on the government's ability to act. They are good when they are based on sound principles, but I certainly don't want a judge to be able to tell the government what it can/can't do based on their reading of an utterly vague text.

[True Federalist (진정한 연방 주의자)]

The 9th Amendment is probably the stupidest constitutional text ever written. It's meaningless bullsh*t. Saying "the people have more rights than those we have just enumerated, but we won't tell you what these rights are" either means nothing at all or it means the people have whatever rights a judge arbitrarily decides they have.

Actually its great! don't you like having rights?

"Rights" are limitations on the government's ability to act. They are good when they are based on sound principles, but I certainly don't want a judge to be able to tell the government what it can/can't do based on their reading of an utterly vague text.

Keep in mind that when the 9th amendment was written, "rights" meant only "negative rights", so the 9th amendment serves to say that "just because we haven't banned a specific way the government can interfere with personal liberty, doesn't mean it can do that".

[Antonio the Sixth]

The 9th Amendment is probably the stupidest constitutional text ever written. It's meaningless bullsh*t. Saying "the people have more rights than those we have just enumerated, but we won't tell you what these rights are" either means nothing at all or it means the people have whatever rights a judge arbitrarily decides they have.

Actually its great! don't you like having rights?

"Rights" are limitations on the government's ability to act. They are good when they are based on sound principles, but I certainly don't want a judge to be able to tell the government what it can/can't do based on their reading of an utterly vague text.

Keep in mind that when the 9th amendment was written, "rights" meant only "negative rights", so the 9th amendment serves to say that "just because we haven't banned a specific way the government can interfere with personal liberty, doesn't mean it can do that".

But the point is, what is "personal liberty" other than what the Constitution says it is? Should we have the SCOTUS figure out what the government can't do based on what he think constitutes "personal liberty"?

[True Federalist (진정한 연방 주의자)]

The 9th Amendment is probably the stupidest constitutional text ever written. It's meaningless bullsh*t. Saying "the people have more rights than those we have just enumerated, but we won't tell you what these rights are" either means nothing at all or it means the people have whatever rights a judge arbitrarily decides they have.

Actually its great! don't you like having rights?

"Rights" are limitations on the government's ability to act. They are good when they are based on sound principles, but I certainly don't want a judge to be able to tell the government what it can/can't do based on their reading of an utterly vague text.

Keep in mind that when the 9th amendment was written, "rights" meant only "negative rights", so the 9th amendment serves to say that "just because we haven't banned a specific way the government can interfere with personal liberty, doesn't mean it can do that".

But the point is, what is "personal liberty" other than what the Constitution says it is? Should we have the SCOTUS figure out what the government can't do based on what he think constitutes "personal liberty"?

You'd prefer having to pass new amendments each time a new issue concerning personal liberty arose?  After all, the right to privacy, contraception, abortion, etc.  aren't enumerated rights?  If SCOTUS didn't do it, who would you have do it?

[Antonio the Sixth]

You'd prefer having to pass new amendments each time a new issue concerning personal liberty arose?

Yes. And the amending procedure should be made much easier.

[Torie]

You'd prefer having to pass new amendments each time a new issue concerning personal liberty arose?

Yes. And the amending procedure should be made much easier.

How would you make it easier?  I mean the very idea of the Constitution is that it requires a supra majority to change it. Do away with that, and the Constitution becomes the functional equivalent of a mere statute.

[True Federalist (진정한 연방 주의자)]

You'd prefer having to pass new amendments each time a new issue concerning personal liberty arose?

Yes. And the amending procedure should be made much easier.

How would you make it easier?  I mean the very idea of the Constitution is that it requires a supra majority to change it. Do away with that, and the Constitution becomes the functional equivalent of a mere statute.

Well to begin with, it could have required only 3/5 of the each house to propose and 2/3 of the states to accept.  (Note, that if had been the case from the start, then Article the First and the Titles of Nobility Amendment would be part of the Constitution today, and the Child Labor Amendment would only require six more states to ratify it instead of ten as now.  (Further reduce the number of states to 3/5 and the Child Labor Amendment would require 2 more states to ratify it.

There also would likely have been some additional amendments be sent to the states if the threshold were but 3/5 of each house, including the Blaine Amendment, a version of the Bricker Amendment, the Flag Desecration Amendment, each of would have been sent to the sates if votes remained unchanged with the margin lowered to 3/5.

[angus]

In order to be a constitutional right, it would have to, you know, be mentioned in the Constitution...

Not necessarily.  See, for example, Griswold versus Connecticut.

Burial is a good idea.  It keeps the bacteria underground and the wolves away from our camp.  I don't think it's a right, though.  You could say that the first amendment, which says among other things that "congress shall make no law abridging the free exercise" of religion, implies that folks have the right to bury their dead.  I don't know whether that case has actually come up.  I guess if your religion demands that you bury the dead, then you could try to argue that it is a constitutionally-guaranteed right.

Anyway, I voted No (other)

[Dr. Cynic]

Some things really seem unnecessary to put in. Something like this would be one of them. We now need the constitution to tell us that it's okay to bury our dead? Come on.

[tpfkaw]

In order to be a constitutional right, it would have to, you know, be mentioned in the Constitution...

Hmm... http://en.wikipedia.org/wiki/Roe_v._Wade

[kobidobidog]

The whole question is brought up with the hopes of a ban crazy legal system can have another thing to ban. When the body no longer has the soul it should be properly disposed of. Satan is in whatever dies. People will war over a shell that has died. They are unawaire that the soul is no longer in the body.

[Antonio the Sixth]

Not necessarily.  See, for example, Griswold versus Connecticut.

Hmm... http://en.wikipedia.org/wiki/Roe_v._Wade

Since when am I obligated to agree with every SC decision?

(And yes, I would have been with the minority on Roe. My pragmatic self is glad the Court made a decision that improved the lives of millions of women, but as a judge my mission is to uphold the law, not to make decision based on policy.)

[angus]

Since when am I obligated to agree with every SC decision?

Well obviously you don't have to agree with it.  Nix vs. Heddon, in my opinion, was a terrible decision.  As was Plessy.  And, when you get right down to it, so was Marbury, but because of Marbury--which was commendable and exquisite in terms of political intrigue because it changed the way that the US government operates--there are rights not even hinted at in the constitution that become rights when a panel of presidentially-appointed lawyers so decides.

[True Federalist (진정한 연방 주의자)]

Nix vs. Heddon, in my opinion, was a terrible decision.

Wny?  Beyond the common meanings of the words "fruit" and "vegetable", the text of the Tariff Act of 1883 clearly indicated that Congress was thinking of "fruit" as a sweet food suitable for use as a dessert as shown by item 302 on the tariff list.  Granted we don't tend to think of fruit as a dessert these days, but this case was decided then, not now.

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But even if you think the Court should not have tried to infer whether Congress intended for a tomato to be a vegetable or a fruit, Nix still loses under Chevron deference. (Yes, I know that the Chevron case is a century later, but the Chevron case only expressed clearly what had been Court doctrine for quite some time.)

[angus]

The tomato never really made it as a handfruit, but was it the tomato's fault?  I cite Nix as a causative factor, at least in part.  I also think that it was because it wasn't known to the Asians and Europeans and Africans in the pre-Columbian era.  But here in the Americas it was the supreme court that caused the tomato to be relegated to the sad role of saladfruit.

We actually eat tomato as a handfruit in my house.  My son likes them, freshly picked and washed, and so do I.  He's allergic to apples and peaches, so it works out well.  If you look at my fruitbowl right now, you'll find bananas, oranges, and tomatoes. 

[True Federalist (진정한 연방 주의자)]

I like tomatoes a lot as well, but it misses the point to think that the Nix decision caused them to be thought of as vegetables instead of fruits, the same as some other botanical fruits treated as vegetables, such as squash and cucumbers as well as a close relative of the tomato, the eggplant (or aubergine for any Brits reading this). (The potato is also in the same genus as the tomato, but we eat a different part of it.) Rather the fact that the tomato is culinary treated as a vegetable rather than a fruit is what leads to the Nix decision.