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Biden’s inaccurate claim to write legal review articles on privacy

Biden’s inaccurate claim to write legal review articles on privacy

“And I have written, all the way back, a series of legislative articles on the Ninth Amendment and – and the 14th Amendment and why this privacy is considered part of a constitutional guarantee. And – they have just obliterated everything.”

– President Biden, statements in MadridJune 30th

The president has been a fierce critic of Dobbs v. Jackson Women’s Health OrganizationThe Supreme Court’s decision which reversed a right to abortion determined by the court in Roe v. Wade almost half a century ago. During a recent press conference, he said that he had written “a number of statutory articles” and that two amendments to the US Constitution had established a right to privacy that was crucial to the reasoning in Rogn opinion.

As we have documented before, the president sometimes tends to embellish the factual record of his past. Earlier this year, he said he was arrested during civil rights protests as there was no evidence that it ever happened. He has also claimed that he was arrested for trying to see Nelson Mandela, but that was untrue.

These remarks about law review articles from the past caught our attention. Biden’s first campaign for the presidency, in 1988, collapsed after journalists discovered that Biden had failed a law school class for submitting an article that borrowed heavily from another law review article without proper citation – and then made false or exaggerated claims about the law school. his. record during a discussion months earlier with voters in New Hampshire.

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So did Biden write such law review articles?

HeinOnline, an online platform with research articles, shows 19 legal assessment citations that show Biden as an author or co-author. (The full list also includes six articles in Foreign Affairs magazine and other illegal publications.) But these articles address issues such as violence against women, the military, federal drug policy, world trade, and foreign policy – issues that were central to Biden’s long career in the Senate. None of these review articles were about the right to privacy.

When we asked the White House for evidence of his statement, we received a long list of quotes for comment. A quote noted, for example, that Biden persuaded CEO John G. Roberts Jr., during his confirmation hearings, to agree that there was a right to privacy in the 14th Amendment, and one that “applies to women.”

Although these remarks certainly demonstrate Biden’s long-standing interest in the legal debate over these changes, they cannot be called statutory review articles.

The White House also issued an opinion piece that appeared under Biden’s name in the Philadelphia Inquirer in 1991, with the headline: “Yes, the Constitution implies rights that are not spelled out.”

This is more on point. The thesis focuses on the ninth amendment, which simply states: “The enumeration in the Constitution of certain rights shall not be construed to deny or degrade others retained by the people.” This change was an attempt by James Madison to address concerns that by listing certain rights, the Bill of Rights would prevent Americans from receiving rights that had not been specified. Biden said in op-ed that the change meant that “we assume that our personal lives are free from state intervention, absent specific constitutional authority for that action.”

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But a few years after this comment was published, the court said in a 1997 ruling that these additional rights must be “deeply rooted in the nation’s history and tradition.”

According to his majority view in Dodd, Justice Samuel A. Alito Jr. used this standard to argue that “the inevitable conclusion is that the right to abortion is not deeply rooted in the nation’s history and traditions. On the contrary, an unbroken tradition of banning abortion due to criminal law persisted from the earliest days of customary law until 1973. “

Alito’s narrative of the story is not universally accepted. “When the United States was founded and for many decades to come, Americans relied on English customary law,” reads an amicus brief filed in Dobbs of the American Historical Association and the Organization of American Historians. “Ordinary law did not regulate abortion early in pregnancy. Ordinary law did not even recognize abortion that occurred at that stage. This is because general law did not legally recognize that a fetus existed separately from a pregnant woman before the woman felt fetal movements, called” quickening. “, which could occur as late as the 25th week of pregnancy.”

In any case, an opinion article is not the same as a law review article, which tends to be longer and deeper in the legal weed than a typical op-ed.

Biden can rightly claim to have written an op-ed for a newspaper about the ninth amendment and the right to privacy which he believes is part of it. He can also claim to have engaged in lengthy discussions with judges now in court about the rights enshrined in the Ninth and 14th Amendments. He certainly has a deep understanding of these issues from his long tenure in the Senate Judiciary Committee.

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But the president stated that he had written “a number of legal articles” about these changes. It gilds the lily – and a president must remain accurate about his achievements. He serves two Pinocchios.

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