Consensual Sex- I hear it's illegal [Archive]

Daniel Shabasson

09-19-2000, 11:09 PM

Vote for Gore! We have to get the inbeciles off the Supreme Court.

The liberal Supreme Court did hold in 1965 something to the effect that consentual sex between married individual in privacy could not be regulated. I'm not sure that the case would apply to sodomy or other kinky stuff. (The holding of the case was simply that the State could not prohibit the use of contraceptives between consenting married couples -- believe it or not, the sale of contraceptives was illegal in Connecticut until this case.)

In 1986, in Bowers v. Hardwick, the court stated that the state could outlaw consentual homosexual sex acts. The court rejected the argument that sex was speech (which would be protected by the 1st ammendment) and also rejected the argument that the right of privacy protected such sex acts. Instead, in an embarassing opinion, the Court stated that homosexuality was conduct, not speech, and that it was traditionally considered abhorrent and deviant and could legitemately be prohibited within the state's power to regulate the morals of the people. Pretty stupid and pathetic opinion!

The conservatives on the court basically believe in deference to legislators. The constitution does not limit what legislators can do in the privacy area. It is not the job of the court to police state and federal legislators unless the action clearly violated the literal meaning of the amendments of the constitution.

Daniel Shabasson

09-19-2000, 11:23 PM

Many years ago, around the turn of the century, the Supreme Court struck down many laws restricting commerce. They based this on the contracts clause of the constitution, which they believed meant that legislatures could not restrict the freedom of individuals to enter into contracts for commecial gain. They applied a "strict scrutiny" test to any law regulating commerce. For any law to pass this test, it had to be shown how the law was necessary for protecting a vital state interest. Few laws could pass muster. (Laws outlawing prostitution could probably have passed the test, although I don't know if such a case was ever decided).

Then later (starting in the 20's ??) the court began to reject this doctrine, holding instead that states could regulate commerce at will and the court would take a hands-off approach. They started to apply a "reasonable basis" test to such laws, and most laws were able to pass this test. I think it was the liberals on the court who were for more laws regulating commerce, for they wanted states to have the ability to protect the health of the public and regulate child labor, working hours, working conditions, etc.

Perhaps, if the court still followed the strict scrutiny test in the area of laws regarding commerce, laws outlawing prostitution would be struck down as violative of the contracts clause of the constitution. Perhaps.

beakerxf

09-20-2000, 12:11 AM

Actually, only the street walker variety of prostitution is 100% illegal in the U.S. Brothels, on the other hand, are legal in Nevada. The state has a compelling interest for not allowing streetwalkers; the spread of disease, drugs, violence, and so on. Brothels makes it easier for the state to regulate the business (tax the income, screen for disease, protect the hookers, etc.)

Personally, I think that from a strictly business point of view, many cities would allow brothels. However, since the majority of the populace doesn't want one "in my back yard", I doubt they will spread beyond Nevada.

tracer

09-20-2000, 02:26 AM

Daniel Shabasson wrote:

Vote for Gore! We have to get the inbeciles off the Supreme Court.

And replace them with other imbeciles on the supreme court, who will uphold Federal laws banning all firearms and anything that might possibly maybe be a teensy tinsy bit detrimental to the environment?

No thanks.

Bricker

09-20-2000, 05:28 AM

Originally posted by tracer
In Virginia, on the other hand, the age of consent is only 15, but it doesn't matter because just about any kind of sex outside of marriage is illegal. (Kinda makes you wonder about the old "Virginia is for lovers" advertising campaign, doesn't it?)

Not exactly, although close.

Virginia Code § 18.2-371 provides in pertinent part:
Any person eighteen years of age or older... [who]engages in consensual sexual intercourse with a child fifteen or older ... [he] shall be guilty of a Class 1 misdemeanor.

And § 18.2-63:
If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of a Class 4 felony.

However, if such child is thirteen years of age or older but under fifteen years of age and consents to sexual intercourse and the accused is a minor and such consenting child is three years or more the accused's junior, the accused shall be guilty of a Class 6 felony. If such consenting child is less than three years the accused's junior, the accused shall be guilty of a Class 4 misdemeanor.

Finally, § 18.2-61(iii) provides that sexual intercourse with a child under age 13 is rape.

So there is basically a graduated system, with different penalties for under 13 (no consent possible, a felony), between 13-15 (consent sometimes possible, and age of the partner is relevant), and 15-18 (consent possible, but still a serious misdemeanor).

Adultery, sexual intercourse by a married person with someone not his spouse, and fornication, voluntary sexual intercourse by an unmarried person, are both Class 4 misdemeanors.

This is a useful distinction, since the greatest possible penalty for a Class 4 misdemeanor is a $250 fine; for a Class 1 misdemeanor, it's a $2,500 fine and a year in jail.

Now, on to Daniel Shabasson, who said:

In 1986, in Bowers v. Hardwick, the court stated that the state could outlaw consentual homosexual sex acts. The court rejected the argument that sex was speech (which would be protected by the 1st ammendment) and also rejected the argument that the right of privacy protected such sex acts. Instead, in an embarassing opinion, the Court stated that homosexuality was conduct, not speech, and that it was traditionally considered abhorrent and deviant and could legitemately be prohibited within the state's power to regulate the morals of the people. Pretty stupid and pathetic opinion!

How so? The job of the courts is to interpret the law. You are perfectly free to characterize the legislators of Georgia (and Virginia, for that matter) as stupid and pathetic if they do not pass laws reflective of your beliefs. But the will of the people of Georgia is expressed through the actions of their legislature; it is abundantly clear that, in Georgia, the people wish to prohibit homosexual conduct. Now, in what way is this violative of any federal constitutional guarantees? As Justice White's opinion so cogently explains: The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Bowers v. Hardwick, 478 U.S. 186, 191 (1986)

I might similarly froth and sputter about the Court's carving out a right to privacy, and then further carving from that a right to abortion. In that case, the Supremes clearly engaged in judical legislation. In Bowers, they kept to their mandate of interpreting the law as it is written.

If you dislike statutes prohibiting certain kinds of conduct, hie yourself down to the state capitol and start lobbying. Don't expect the courts to pass, or repeal, a law that you cannot convince the people of a state needs to be changed.

- Rick

barbitu8

09-20-2000, 07:36 AM

Cogency is in the mind of the thinker. As Bricker pointed out, the SC has carved out the right to privacy. In spite of protests to the contrary, what can be more private than a consensual act between two adults in a private house where there are no overriding social or public interests? I can see that in drug cases there can be overriding interests, but the Supremes were off base in the Georgia sodomy case. The decision merely reflected their prejudices.

Spoke

09-20-2000, 07:50 AM

For your further edification, here is a link to the case of Griswold v. Connecticut (http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479), in which the old "liberal" Supreme Court decided that the state could not control the use of contraceptives by consenting adults. Here also is a link to the case of Bowers v. Hardwick (http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=186), wherein our current "conservative" Supreme Court said that it is perfectly OK for the state to tell consenting adults what they can and cannot do in the bedroom.

Incidentally, since the Bowers decision, several state Supreme Courts (my own state of Georgia included) have decided that anti-sodomy laws violate their respective State Constitutions. (Even though, in Bowers, the Supreme Court held that they did not violate the Federal Constitution.) Ironically, the language of the various state constitutions (with respect to rights) is often identical, or virtually identical, to the language in the Federal Constitution, which proves, I guess, that it's all in how you look at it.

I do note, however, that a 14-year-old girl in Georgia was recently charged with "fornication" under Georgia law for having sex with her 17-year-old boyfriend. The boyfriend got charged with statutory rape.

Spoke

09-20-2000, 07:56 AM

I should amend my last post. The Bowers decision was not rendered by the current Supreme Court. It was decided in 1986, by a 5-4 voting margin. The majority in the case included current "conservative" justices Rehnquist and O'Connor.

Spoke

09-20-2000, 08:21 AM

Bricker wrote:
But the will of the people of Georgia is expressed through the actions of their legislature; it is abundantly clear that, in Georgia, the people wish to prohibit homosexual conduct. Now, in what way is this violative of any federal constitutional guarantees?

The statute in question does not limit itself to prohibiting "homosexual conduct." It prohibits sodomy, which is defined broadly enough to include oral sex between a married couple. Sorry, but it is hardly "abundantly clear" that the people of Georgia are in favor of this law.

Now you might successfully argue that the people of Georgia were in favor of this law when it was originally passed, but that was way back in 1833. The reason the law was never repealed is not that the majority of people here are opposed to oral sex (we're not, BTW), but rather that legislators are afraid to touch the law for fear of incurring the wrath of the religious right.

Question, Bricker: Do you believe that the Supreme Court in Griswold was wrong to hold that we have a right of privacy? Do you believe that the rights we have as citizens of the U.S. should be limited to those expressly enumerated in the Bill of Rights? If so, how do you explain the 9th Amendment (http://caselaw.findlaw.com/data/constitution/amendment09/), pray tell?

I would certainly hope that a right of privacy is one of those rights "retained by the people." I feel confident that Madison would agree that it is.

thinksnow

09-20-2000, 12:06 PM

So...are we gonna have sex soon, 'cuz I'm starting to get a little antsy.

Stella*Fantasia

09-20-2000, 12:13 PM

Oh no!!! I got sodomized in Georgia once!! Am I going to jail?

Spoke

09-20-2000, 12:55 PM

Stella*Fantasia wrote:
I got sodomized in Georgia once!! Am I going to jail?

First of all, congratulations. Was it good for you?

Secondly, nope, there will be no jail time for you. You can pretty much get your groove on in Georgia with impunity these days, Stella. (So long as you keep it private, anyway.) Let the oral sex begin!

In the case of Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), the Georgia Supreme Court (clearly possessed of a wisdom currently lacking on the U.S. Supreme Court), found that under the Georgia Constitution, there is a "right of privacy," and that one element of that right of privacy is the right of adults to engage in consensual, private, not-for-profit, sex acts of their own choosing.

The irony is that the Constitutional language relied upon by the Georgia Supreme Court virtually mirrors that found in the U.S. Constitution. So, in other words, the U.S. Supreme Court and the Georgia Supreme Court, interpreting virtually identical verbiage, came to opposite conclusions.

Freyr

09-20-2000, 12:56 PM

Wildest Bill

09-20-2000, 12:59 PM

Originally posted by Heath Doolin

[B]I remember a story way back in the South that had a heterosexual couple being arrested for sodomy-in their own home. From some research, I have seen it actually listed as a illegal act between consenting people even today!

No offense this sounds like a bull corn urban legend. You don't have a cite do ya?

I mean how did they get caught in the first place? Do they bedroom police that inspect if the you know what is going in the you know where place? Seems pretty far fetched to me.

barbitu8

09-20-2000, 01:08 PM

In case you haen't made the link to the Bowers v. hardwick case, do so. Nobody was prosecuted. The state decided to drop the charges; however, Mr. Hardwicke sought a declaratory judgment on the issue. The SC stated they were not going to take that slippery path, declaring all private homosexual activities protected under the US Const.

I think, as I posted previously, that the path is not so slippery. Moreover, as pointed out, sodomy is not limited to homosexuals, as the Supremes said.

beakerxf

09-20-2000, 01:11 PM

The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Bowers v. Hardwick, 478 U.S. 186, 191 (1986)

Originally posted by Bricker
In that case, the Supremes clearly engaged in judical legislation. In Bowers, they kept to their mandate of interpreting the law as it is written.

What is unclear to me how the court justified distinguishing between heterosexual relations being an affair and homosexual relations being a public concern. Perhaps you can further explain to me how he chose to distinguish between the two.

Because when I look at it, I see the freedom of religion of certain sects superceding the religious beliefs of homosexuals with no compelling state interest to justify it.

Jodi

09-20-2000, 01:13 PM

Uh, Bill, the cite for that case is Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) -- the same case already cited here.

Hardwick sued the State of Georgia to challenge the constitutionality of the anti-sodomy statute after he was arrested for consensually engaging in sodomy with another male in his (Hardwick's) own home. And, yes, IIRC, the police did look in his window to discover them doing it.

The U.S. Supreme Court held that the federal constitution does not convey a fundamental right to engage in homosexual acts, and that therefore Georgia had a right to make such acts illegal through legislative fiat. And I frankly do not disagree with this, so far as it goes. But I agree with the dissent of Justice Brandeis who pointed out (correctly, I think) that the true issue wasn't sodomy but "the right to be left alone." In other words, the issue the court should have addressed, in his opinion, was not whether Hardwick had a right to engage in sodomy but whether the cops had a right to make a point to look in his window in a specific attempt to catch him breaking the law. That, IMO, was what the constitutional issue of right to privacy should have addressed -- not what Hardwick did, but what the police did to catch him. So I agree that Bowers was poorly decided; just not for the same reason many others do.

But anyway, yes it's a real case, and there's the cite for it.

pldennison

09-20-2000, 01:20 PM

Jodi, Bill was asking for a cite concerning a case involving a heterosexual couple, not a case involving homosexual conduct. Is there such a case? I've heard this, too, but confess I don't know if it's a real case or not.

Personally, I'm frightened that people in power feel that we need some agency to confer upon us the right to engage in any consensual adult sexual behavior.

Spoke

09-20-2000, 01:35 PM

And yes, Wildest Bill, before the law was declared unconstitutional by the Georgia Supreme Court, we heterosexuals were at risk of prosecution as well. I don't know of any cases where the cops peeped in a window to catch heterosexuals at play, but I do recall one case where a woman in a divorce case was asked whether she and her husband had engaged in sexual intercourse since their separation. She testified that they had engaged in oral sex, and IIRC, wound up being prosecuted for sodomy.

Jodi a point of clarification. My recollection is that in the Bowers case, the cop wasn't specifically looking for a sodomy-in-progress. He was at the house on other business and happened to pass by an open door, where he chanced to observe the, er, prohibited act.

Spoke

09-20-2000, 01:37 PM

pldennison wrote:
Personally, I'm frightened that people in power feel that we need some agency to confer upon us the right to engage in any consensual adult sexual behavior.

Huh? Agency? What agency? Who said anything about any agency?

Bricker

09-20-2000, 02:08 PM

Originally posted by spoke-
In the case of Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), the Georgia Supreme Court (clearly possessed of a wisdom currently lacking on the U.S. Supreme Court), found that under the Georgia Constitution, there is a "right of privacy," and that one element of that right of privacy is the right of adults to engage in consensual, private, not-for-profit, sex acts of their own choosing.

The irony is that the Constitutional language relied upon by the Georgia Supreme Court virtually mirrors that found in the U.S. Constitution. So, in other words, the U.S. Supreme Court and the Georgia Supreme Court, interpreting virtually identical verbiage, came to opposite conclusions.

Spoke,
Although it is nearly identical verbiage, the Georgia Superme Court actually recognized "privacy" as a right flowing from the Georgia constitutional provision that no person shall be deprived of liberty except by due process of law in 1905, in Pavesich v. New England Life Insurance, 122 Ga. 190. We have thus been on notice for ninety-five years now that the protections afforded by the Georgia and U.S. Constitutions are not coextensive.

It is entirely within the province of the Georgia Supreme Court to interpret the protections that the Georgia Constitution affords to Georgians.

Now, I would much rather see the legislature amend the laws, rather than the court erase them by judicial fiat. But I cannot deny that ultimately, the Georgia Supreme Court has the authority to do just that, and if the Teeming Georgia Millions are sufficiently outraged at the prospect of free sodomy for all, I suppose they cam amend their constitution.

Interestingly enough, the Powell case did not start out being about sodomy. Anthony Powell was charged with rape and aggravated sodomy, for his actions with his seventeen-year-old niece. At trial, he testified that he had engaged in consensual intercourse and oral sodomy. The court, sua sponte[/], instructed the jury on the law of sodomy. The jury aquitted Powell of the rape and aggravated sodomy, but convicted him of the sodomy charge. He appealed, claiming the sodomy law violated his right to privacy, and the Georgia Supremes agreed.

Freyr,
Just as the Georgia Supremes have every right to decide what the Georgia Constitution means, so, too, the U.S. Supreme Court has the final appellate authority on questions of what the Fourth and Fourteenth Amendment mean. They, too, have definitively spoken, and they have said that the Fourth and Fourteenth Amendments, or indeed any other parts of the U.S. Constitution, do [i]not contain a right to sodomy among consenting adults. Unless "Freyr" is the pen-name of Justice Scalia, I suggest, Freyr, that your interpretation of what the Fourth Amendment guarantees you is of significantly less importance that the Court's.

In short, the Bowers decision is good law, and does not "violate" the U.S. Constitution.

- Rick

pldennison

09-20-2000, 02:13 PM

Originally posted by spoke-
pldennison wrote:
Personally, I'm frightened that people in power feel that we need some agency to confer upon us the right to engage in any consensual adult sexual behavior.

Huh? Agency? What agency? Who said anything about any agency?

Bad word choice--replace "agency" with "authority." For the Court to say:The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.

really bothers me. The Constitution does not confer any rights on me at all; it protects rights that are assumed to exist. If the right to consensual sexual activity is not assumed to exist, we're in big trouble.

Spoke

09-20-2000, 02:35 PM

Bricker wrote:
Now, I would much rather see the legislature amend the laws, rather than the court erase them by judicial fiat.

It is disappointing to see you refer to the time-honored process of judicial review as "judicial fiat."

Do you contend that the Supreme Court should not be empowered to strike down laws that violate our Constitutional rights? Suppose a majority of people in Georgia decided that black children should not be taught to read, and passed a law to that effect. Should the Court humbly bow to the will of the majority, and limit itself to "interpreting" that law? Or should the Court exercise the power of judicial review and strike down the law as unconstitutional?

As for the Bowers case being "good law," well, that issue is not as settled as you imply. It was a 5-4 decision, and even the concurrances hold open the possibility that an argument presented from a different angle might change things. Furthermore, a thin 5-4 vote is vulnerable to the shifting majorities on the Court and to the shift of public perceptions of homosexuality. As Justice Blackmun pointed out in his dissent in Bowers:

It took but three years for the Court to see the error in its analysis in Minersville School District v.
Gobitis, 310 U.S. [478 U.S. 186, 214] 586 (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

Slim majorities on the Court can fade, and "good law" can become "bad law."

Plessy v. Ferguson was once "good law," too, until Brown v Board of Education came along.

Jodi

09-20-2000, 02:37 PM

PHIL --

Jodi, Bill was asking for a cite concerning a case involving a heterosexual couple, not a case involving homosexual conduct. Is there such a case? I've heard this, too, but confess I don't know if it's a real case or not.

Well, it's Bowers, in that Hardwich was joined in the suit by "John and Mary Doe," a couple who avowed that they wanted to engage in the proscribed act but felt they could not because of the statute. There may be other cases dealing with heterosexual acts, I don't know, but I do know that most sodomy statutes do not limit the crime to homosexual acts; it is illegal for heterosexuals as well. For example, the U.S. Code of Military Justice (that bastion of liberalism) prohibits sodomy by anybody. See 10 U.S.C. sec. 801. Most state statutes do the same.

If the right to consensual sexual activity is not assumed to exist, we're in big trouble.

Then we're in big trouble. No court has ever held that we have the right to engage in any sexual activity we choose, so long as it's consensual. This is simply not a fundamental right the courts have deemed worthy of protection. Personally, I'm of the opinion that you should be able to do whatever you want so long as you don't scare the horses. But at the same time, I don't consider "sex of pleasure" for be a fundamental right worthy of constitutional protection, though I'm aware people may and do disagree.

For what it's worth, my state's supreme court last year upheld a district court's determination that the state anti-sodomy law violated the state constitutional right to privacy. But the state supreme court pointed out that our state constitution (unlike, say, the Georgia one) affords a much broader right to privacy than the Federal constitution does. (Like many other states, my state defined "sodomy" as any "unnatural" act -- including oral sex -- and the case that resulted in the law being stricken was brought by a lesbian couple.)

Jodi

09-20-2000, 02:44 PM

SPOKE --

"Good law" as a phrase means that the law is on the books and binding, and has not been struck down or substantially modified. It doesn't mean the law is great, or even good in the sense of wise or defensible. Yes, Plessy was good law until it was overruled; so is every other case.

Spoke

09-20-2000, 02:53 PM

Jodi-

I know what the phrase "good law" means. (I'm a lawyer, for crying out loud! ;))

That is why I brought up the Minersville School District v. Gobitis case (cited by Blackmun) as an example of "good law" which didn't last long. It was overruled three years after being decided. I predict that a similar fate lies in store for the Bowers decision down the road. The numerous State Court rulings striking down these laws under State Constitutions represent, in my view, the future trend of legal thought in this area.

sqweels

09-20-2000, 03:11 PM

...uphold Federal laws banning all firearms...

What's all this about Federal laws banning all firearms? Did I miss something?

Spoke

09-20-2000, 03:19 PM

Oh yeah, and Bricker also wrote:
Although it is nearly identical verbiage, the Georgia Superme Court actually recognized "privacy" as a right flowing from the Georgia constitutional provision that no person shall be deprived of liberty except by due process of law in 1905, in Pavesich v. New England Life Insurance, 122 Ga. 190. We have thus been on notice for ninety-five years now that the protections afforded by the Georgia and U.S. Constitutions are not coextensive.

Huh? I'm not sure I follow your logic here. The Georgia found that a right of privacy exists in the Pavesich v. New England Life Insurance case in 1905, as you say. The U.S. Supreme Court confirmed that such a right of privacy exists under the Federal Constitution in Griswold v. Connecticut in 1965 (citing a number of earlier cases which alluded to that right). Where is this divergence of which you speak?

It looks to me like the two Courts didn't diverge until it came time to decide whether the right to privacy included the right of consenting adults to make their own decisions about sexual activity in the privacy of their own homes. That divergence didn't occur until after the Bowers decision.

At any rate, the fact remains that the two courts, interpreting virtually identical language, came to the opposite conclusion about whether that language protects private sexual decisions. To argue about when that divergence of interpretations emerged isn't relevant to the discussion at hand, in my view.

egkelly

09-20-2000, 03:42 PM

..can anybody tell me why laws are written in such idiotic fashion?..("carnal knowledge" indeed!
Anyway, when did sexual actions ("crimes against nature") other than intercourse come to be crimes?
What I really want to know is: when our Predator-In-Chief ..I mean president, leaves Washington and becomes a private citizen...will he be required to register (as a sex offender) with the local police department?

Heath Doolin

09-20-2000, 04:05 PM

Bill

I distinctly remember watching it on 20/20. From what I understand, the ex-wife was trying to get custody of the child from the father by saying that the couple were practicing sodomy which by rule of thae State (which one I cannot remember) is illegal. So the couple were arrested and charged for it even when it was in their own home.

I will see if there is any online documentation but there is my cite.

Heath Doolin

09-20-2000, 04:08 PM

My bad...I hit post instead of clear! Pease ignore former post!

Bricker

09-20-2000, 04:11 PM

Originally posted by spoke-
It is disappointing to see you refer to the time-honored process of judicial review as "judicial fiat."

Calls 'em likes I sees 'em.

A court that applies the law to the facts found by a lower court is exercising judicial review. A court that creates substantive, new personal rights our of whole cloth is invading the province of the legislature.

Do you contend that the Supreme Court should not be empowered to strike down laws that violate our Constitutional rights? Suppose a majority of people in Georgia decided that black children should not be taught to read, and passed a law to that effect. Should the Court humbly bow to the will of the majority, and limit itself to "interpreting" that law? Or should the Court exercise the power of judicial review and strike down the law as unconstitutional?

Assuming the constitution in question guarantees, in plain words, to all citizens the right to due process of law, then I absolutely agree that the court should exercise judicial review and strike the law as unconstituional. It cannot be sustained; no reasonable interpretation of it would allow it to coexist with that constitutional provision.

BUT - if a majority of people in Georgia decided that kissing in public ought to be illegal, and the legislature, responsive to that decision, passed the law, then for a reviewing court to find that public kissing is in the penumbra of unmentioned constitutional rights is ludicrous. And if they did... that would be judicial fiat.

Plessy v. Ferguson was once "good law," too, until Brown v Board of Education came along.

True. I know for the Supremes, stare decisis is more of a suggestion than a hard and fast rule. :)

The whole idea of a democratic republic, though, is that the people, through their elected representatives, make the law. The courts should interpret that law, fairly - discerning the intent of the legislature through its plain words, and if those are ambiguous, through its legislative history.

When courts take it upon themselves to create what amnounts to new Constitutional rights... that, I suggest, is a dangerous road to tread.

- Rick

pldennison

09-20-2000, 04:11 PM

Jodi: Thank you. That explains it a little better. I still find it . . . distasteful that something like that isn't considered a fundamental right deserving of protection, but that at least clears up the legal perspective.

Bricker

09-20-2000, 04:17 PM

By the way -- if sex for pleasure ought to be a constitutional right, at what age should that right vest?

I seem to remember a California case a few years ago in which a teenager claimed that California's law against minors having sex violated his state and federal right to privacy.

The justices in Sacramento did not agree. :)

- Rick

Spoke

09-20-2000, 04:52 PM

Bricker wrote:
Assuming the constitution in question guarantees, in plain words, to all citizens the right to due process of law, then I absolutely agree that the court should exercise judicial review and strike the [hypothetical] law [forbidding education of black children] as unconstituional. It cannot be sustained; no reasonable interpretation of it would allow it to coexist with that constitutional provision.

BUT - if a majority of people in Georgia decided that kissing in public ought to be illegal, and the legislature, responsive to that decision, passed the law, then for a reviewing court to find that public kissing is in the penumbra of unmentioned constitutional rights is ludicrous. And if they did... that would be judicial fiat.

Hmmm. Some logical acrobatics here. Let's see, you agree that black children have a right to an education if they so choose, even though that right is not spelled out "in plain language" in the Constitution. You apparently interpret the phrase "due process" to include that right.

On the other hand, since there is no "right to privacy" explicitly spelled out in the Constitution, you don't think such a right exists? Am I reading you correctly?

Your apparent insistence that a right has to be spelled out in the Constitution before it can be enforced by the Court is not consistent with Ninth Amendment (http://caselaw.findlaw.com/data/constitution/amendment09/), which expressly says:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.In other words, the people most certainly do possess rights which are not explicitly deliniated in the Constitution. I would argue that a right to privacy is among them.

Your last hypothetical, about public behavior (kissing) is off point. We are talking about private sexual behavior in this debate. Could a State outlaw public kissing and pass Constitutional muster? I would say not, but that's really a different question isn't it? First Amendment questions of freedom of speech come into play. Arguments about public decency come into play. It's a whole 'nother debate. ;)

Bricker also wrote:The whole idea of a democratic republic, though, is that the people, through their elected representatives, make the law. The courts should interpret that law, fairly - discerning the intent of the legislature through its plain words, and if those are ambiguous, through its legislative history.

That is an inaccurate and incomplete description of our system at best. We live under a system of majority rule, true enough, but the rule of the majority is tempered by the rights of the minority.

Hence, a theoretical Republican majority couldn't get together and pass a law which would prohibit Democrats from publishing newspapers. Such a law would violate the First Amendment rights of those Democrats.

In such a case, the Supreme Court is not limited to "interpreting" the law or "discerning its intent." The Court has the power to declare the law unconstitutional and unenforceable in spite of the desire of the majority to keep the law in place.

This has been so since the days of President John Adams, and the Alien and Sedition Acts. Do you think it should not be thus? If not, what would your remedy be if a majority gets together and, acting through a legislative body, passes a law which violates a Constitutional right?

And also (anticipating a possible reply that a law should only be struck down if it violates a right clearly spelled out in the Constititution) do you think the Ninth Amendment, quoted above, is of no effect? Do you think the only rights we should have are those expressly listed "in plain language" in the Bill of Rights?

(Pardon my Socratic method. Old habits are hard to break. ;))

Polycarp

09-20-2000, 05:12 PM

Bricker, I have to differ with you. As Phil and others have stressed, our rights are not given but guaranteed by the Constitution. The Court never "creates" a right; they merely discover or identify one that was not previously spelled out anywhere.

This doesn't sound like sound constitutional law, does it? It is, though. Refer back to the Founding Fathers. The first ten amendments are considered to be "the Bill of Rights." (I suppose XXVII might be included with that as well, now, but it doesn't really fit!) Eight of them spell out specific rights which the Federal government may not abrogate. [As a really minor cavil, I'm probably alone in feeling that the Hugo Black gimmick of finding them applicable to the states by Amendment XIV is neither particularly good law nor necessary -- Amendments II through X do not specify Congress, and may therefore be read as "the government" (Federal, State, local or whatever) may not abridge those rights. I presume I stand a real snowball's chance in Hell of getting any court to buy into that reasoning, though.)

My point is that they did not create a laundry list of all rights they intended to protect against the government's intrusion, and specified as much in Amendments IX and X.

Now granted that Bork has a point in his illustration that we don't know specifically what Amendment IX covers. But that's only important to people composing treatises on constitutional jurisprudence. The language is quite clear that there are in fact other rights than those listed in Amendments I-VIII, which are equally protected from Federal abridgement.

What rights? My suggestion would be that Potter Stewart's maxim may be extended here: we can't define them, but we know them when we see them. And while the Supremes have been loath to specify Ninth Amendment rights, they have not refused to do so. There are at least two rights which SCOTUS decisions have found within the Ninth Amendment (not within the "penumbra" of anything -- that's poetic metaphor that has no business in constitutional law). Specifically, the right to travel is protected (a Wisconsin welfare case is the cite, which I don't have at my fingertips); and the right to privacy is specified in Griswold. (In view of Bowers there would seem to be some limits to this right under current case law, but I'd hate to be a jurisconsult trying to spell out the nuances.)

It is very interesting to me that cartoonist Herb Block took issue with the Court over Bowers, identifying what seems to have escaped the Supremes -- that it was a question of privacy. His famous cartoon shows a shocked (heterosexual, by implication married) couple in bed, pulling the covers up over themselves, seen through the wall of their bedroom, which Berger and Rehnquist are in the process of tearing down. The caption is put in the husband's mouth: "But they told us they were strict constructionists!"

Jodi

09-20-2000, 05:29 PM

Sorry, Spoke! :eek:

Do you think the Ninth Amendment, quoted above, is of no effect? Do you think the only rights we should have are those expressly listed "in plain language" in the Bill of Rights?

Not that this was addressed to me, but I think the Ninth Amendment is hands down the most weaselly part of the Consititution: "We're not saying these are all the rights the people have; they have others; but we're not going to say what those rights are or where they came from." I am personally suspicious of the (few) cases grounded in the Ninth Amendment, as it has always struck me as sort of the cite of last resort -- in the same category as the "penumbral eminations" -- which you won't technically find in the Constitution, either.

IMO, the flaw in the Bowers case was in focusing on the "right to commit sodomy" -- which they held to be not a fundamental right -- instead of the "right to privacy" -- which, of course, they have repeatedly held is a fundamental right. Instead, the Court simply stated that the right to privacy "did not extend so far" as to cover consensual homosexual sex. Why it should not, they did not say. Personally, I never thought the due process argument was a very good one and I thought the Court correctly dismissed it. But I thought the right to privacy issue was much more thorny, and I was troubled by their cavelier glossing over of it.

In other words, I agree that while Bowers remains "good law," it isn't really very good law (if you follow). I notice the Court itself has been compelled to distinguish it several times, and I think it's a case that is ripe for a revisitation and maybe a reversal. I certainly wouldn't rely on it too heavily, or on it alone, if I had to brief the issue.

Jodi

09-20-2000, 05:50 PM

POLYCARP says:

What rights? My suggestion would be that Potter Stewart's maxim may be extended here: we can't define them, but we know them when we see them.

But who is "we"? I hope you can see that this takes us right back to Rick's point about creating rights through judicial fiat. If the states, through their various legislatures -- the true field of simple democracy in our system -- have not seen fit to create or extend those rights, why should the proverbial Nine Old Men step in and do so? They do not speak for the majority of America and never have. I find it a very dangerous proposition that Supreme Court justices might declare anything that suits them to be a "fundamental right" and shoehorn it back into the Constitution as being "unenumerated" but nevertheless "emenating" from the Ninth Amendment.

At their most simplistic level, rights come from one of two sources (IMO): they are either established through social consensus ("we hold these truths to be self-evident") or their are inherent, coming from God or wherever the individual is comfortable thinking they come from (" . . . that they are endowed by their Creator . . ."). Rights do not -- and should not -- come from the minds of the U.S. Supreme Court just because those particular elite appointees happen to think something ought to be a right. This, IMO, is the flaw in "we know it when we see it;" if only they see it, then arguably it should not bind the rest of us.

Polycarp

09-20-2000, 06:15 PM

Good point, Jodi. But what I was getting at (and I'm sure I'm not making myself clear) is that when some rulemaker (whether legislature or administrative body with rulemaking power) decides to trespass on something that the vast majority of Americans consider to be their right, the Ninth Amendment is there to protect it. Madison, Jefferson, and Adams never contemplated the need for a "right to travel" or a "right to privacy" per se; it was implicit in being a citizen of a free nation to them. Then circumstances changed and what had been evident needed to be spelled out. With the degree of judicial self-restraint the court usually brings to cases, I'm comfortable with it "discovering" a Ninth Amendment right every 40 years or so -- when somebody has created some regulation that infringes on what seemed obviously a right to most reasonable people. Which, I suppose, gets right back to your point, that there is a lack of clarity there.

My proposition is that there is a lack of clarity in the extent of the Ninth Amendment because the Founding Fathers intended it to be nebulous -- because somebody, somewhere was going to infringe on something they'd failed to enumerate that they would have listed if they had thought of it. Your point on the origin of rights supports this -- maybe God knows what all they are, but neither the Founding Fathers nor SCOTUS, nor you or I, nor Edward Corwin's successors, can specify them. But that does not mean that they do not exist. At some point in the 22nd Century, there will be some case that determines that each person has a right to his own identity, and that programming his personality into someone else's computer without his consent violates that right. Or something else off the wall that impinges on something you or I cannot even conceive of at this point, but that we'd agree is obviously a basic right if we were faced with the question.

beakerxf

09-20-2000, 09:38 PM

Originally posted by Jodi
At their most simplistic level, rights come from one of two sources (IMO): they are either established through social consensus ("we hold these truths to be self-evident") or their are inherent, coming from God or wherever the individual is comfortable thinking they come from (" . . . that they are endowed by their Creator . . .").

Who determines that a right is inherent if it's not ennumerated? The majority?

Lemur866

09-21-2000, 02:02 AM

OK, I see some people are having some trouble with this concept. It is perfectly possible for a justice to rule that a perfectly stupid, boneheaded travesty of a law nevertheless does not violate the constitution and therefore they do not have the power to override the law even though they think it stinks.

Personally, I engage in sodomy all the time, it's fun. I think having a law against it is stupid, and I'd vote against any person who passed a law against it and against any prosecutor who charged someone with it. If I lived in a state where sodomy was illegal I'd actively campaign to repeal the law. But that doesn't neccesarily mean that sodomy laws are unconstitutional. Yes, of course our rights are inherent and are not granted by the constitution but rather guaranteed.

But not all bad laws are unconstitutional. We can imagine that every Justice who reviews a law that they disagree with imagines that the law has some flaws. At what point does the Justice decide that the law violates the 9th amendment? You can't just throw out any old law you think sucks with the 9th amendment, so how does a bad law reach the point of violating our unenumerated rights? Sure, I can see the 9th guaranteeing my right not to be braintaped and cloned against my will, but what about my right to create an army of unstoppable atomic supermen? Sure, you may think that I shouldn't be allowed to create atomic supermen, but where in the constitution is the government granted the power to regulate atomic superman armies? So we agree this can be a very gray area. Rather than blame the court for failing to strike down dumb laws, how about we blame the lawmakers for enacting dumb laws?

Bricker

09-21-2000, 09:09 AM

Originally posted by spoke-
Hmmm. Some logical acrobatics here. Let's see, you agree that black children have a right to an education if they so choose, even though that right is not spelled out "in plain language" in the Constitution. You apparently interpret the phrase "due process" to include that right.

On the other hand, since there is no "right to privacy" explicitly spelled out in the Constitution, you don't think such a right exists? Am I reading you correctly?

Nope.

No one has a right to education. I interpret the phrases "due process" and "all persons" to mean that the state may not draw invidious distinctions between persons of different races. Georgia may decide to stop funding all education, but not all education for black children.

Your apparent insistence that a right has to be spelled out in the Constitution before it can be enforced by the Court is not consistent with the Ninth Amendment, which expressly says: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. In other words, the people most certainly do possess rights which are not explicitly deliniated in the Constitution. I would argue that a right to privacy is among them.

Well, fair enough. But if I contend that the right to public nudity is also one of the Ninth Amendment's unenumerated rights, how then shall you refute me? You may haul out concerns about public decency (is that, by the way, another Ninth Amendment right? If so, what constitutes decency?) but in the end, we are merely debating whether a particular "right" seems like a good idea, and, if so, adding it to the Constitution by judicial fiat. (By the way... fiat means "a command or act of will that creates something without or as if without further effort; an authoritative determination," and since it emanates from the judiciary, surely it's not inappropriate to call such decisions judicial fiat.

The whole idea of a democratic republic, though, is that the people, through their elected representatives, make the law. The courts should interpret that law, fairly - discerning the intent of the legislature through its plain words, and if those are ambiguous, through its legislative history.

That is an inaccurate and incomplete description of our system at best. We live under a system of majority rule, true enough, but the rule of the majority is tempered by the rights of the minority.

Hence, a theoretical Republican majority couldn't get together and pass a law which would prohibit Democrats from publishing newspapers. Such a law would violate the First Amendment rights of those Democrats.

Correct. When I said "interpret the law" above, I certainly meant that the laws passed by Congress and the states must be read in pari materia with the Constitution, giving, if possible, full effect to each and reading them in harmony with each other. But if an act of legislature clearly contravenes the Constitution, then obviously that document, being the supreme law of the land, would control.

In such a case, the Supreme Court is not limited to "interpreting" the law or "discerning its intent." The Court has the power to declare the law unconstitutional and unenforceable in spite of the desire of the majority to keep the law in place.

No - that's not so, as long as we we agree that "law" includes the Constitution. Interpreting the law, and discernig its intent, is exactly what the Supreme Court should do.

This has been so since the days of President John Adams, and the Alien and Sedition Acts. Do you think it should not be thus? If not, what would your remedy be if a majority gets together and, acting through a legislative body, passes a law which violates a Constitutional right?

As I said, the Constitution is the supreme law of the land, and if a law violates a provision thereof, it is absolutely correct for the courts to strike it.

And also (anticipating a possible reply that a law should only be struck down if it violates a right clearly spelled out in the Constititution) do you think the Ninth Amendment, quoted above, is of no effect? Do you think the only rights we should have are those expressly listed "in plain language" in the Bill of Rights?

I think the Ninth Amendment has some effect, yes - but the opposite argument is also compelling - who is to say where its effects end? I say the Ninth Amendment includes the right of unborn children to protection from murder. The Supremes say it doesn't. The elasticity of possible interpretations of the Ninth Amendment seems rather astonishing, to say the least.

Look at Furman v. Georgia. Three justices' concurring opinions (Douglas, Brennan and Marshall) held that the death penalty itself constitutes "cruel and unusual" punishment. This despite the fact that it was accepted for years as a possible punishment. Now, no death penalty fan I. But in my view, again, it falls to the state legislatures to abolish the death penalty, not to the Supreme Court to fiat it our of existence... as they did in Furman, only to bring it back with Gregg v. Georgia. (By the way - Dougls' opinion in Furman said that although he thought the death penalty was cruel and unusual, as that term is used in the Eighth Amendment, he believed the Court bound by earlier holdings that it wasn't, and he confined his rationale on reversal to the issue of how it was applied unfairly).

The point, lest it get lost, is that we seemt o be perfectly content to grant to unelected leaders considerable power to "discover" rights. I certainly admit that some leeway must be given to the courts, but I am uncomfortable with the degree of legislative power the courts now wield.

That's all.

- Rick

Jodi

09-21-2000, 10:33 AM

POLYCARP --

What I was getting at (and I'm sure I'm not making myself clear) is that when some rulemaker (whether legislature or administrative body with rulemaking power) decides to trespass on something that the vast majority of Americans consider to be their right, the Ninth Amendment is there to protect it.

You were perfectly clear, as usual. :) And I have no problem with the Ninth Amendment being used to protect something the "vast majority of Americans consider" a right. I am not agitating for its removal; I too think it is a necessary catch-all to underline that the Bill of Rights was never intended to be exhausted.

My problem is the potential for the Ninth Amendment to be used by the Court to create a new right that some segment of society might consider a right but another segment of society may not consider a right -- when that "vast majority" is lacking, in other words. I, like Bricker, am troubled by the Supreme Court's ability to create substantive law from whole cloth by pulling "discovered" rights out of the air and announcing that the "emenate" from the constitution. The creation of sustantive law, as opposed to its interpretation and construction, is the duty of the legislature, not the courts. But Recognizing that the Ninth Amendment is the Great Loophole of the Constitution does not mean that it ought to be abolished; it means that society out to take a hard look at the circumstances under which it's invoked.

Jodi

09-21-2000, 10:44 AM

In the proceeding post, please change "exhausted" to "exhaustive;" "the" to "they;" and "bridegoon" to "bridegroom" (and a cookie to the person who gets that reference).

Jodi

09-21-2000, 10:49 AM

In the preceding post, please change "proceeding" to "preceding." :: checking this post for typos ::

Thank you.

SuaSponte

09-21-2000, 03:44 PM

Originally posted by Bricker
Assuming the constitution in question guarantees, in plain words, to all citizens the right to due process of law, then I absolutely agree that the court should exercise judicial review and strike the law as unconstituional.

[singsong voice]
Bricker believes in substantive due process;
Bricker believes in substantive due process!!
[/singsong voice]

Sua

echidnasarf

09-21-2000, 03:55 PM

Originally posted by beakerxf
Personally, I think that from a strictly business point of view, many cities would allow brothels. However, since the majority of the populace doesn't want one "in my back yard", I doubt they will spread beyond Nevada.

Maybe they aren't STRICTLY brothels, but they are there. Look in the yellow pages for 'massage', or 'escort services'.

Gadarene

09-21-2000, 04:10 PM

Bricker: Given your stated views, would I be correct in guessing that you hold a pretty favorable opinion of Felix Frankfurter and his jurisprudential philosophy? :)

(And hold these thoughts, guys; I want to start a Ninth Amendment thread tonight trying to reconcile that amendment with judicial constructionism.)

Spoke

09-21-2000, 05:21 PM

Bricker wrote:
But if I contend that the right to public nudity is also one of the Ninth Amendment's unenumerated rights, how then shall you refute me?

Why would I want to? :D

(I think Ben Franklin would have been right there with you arguing for the "right to get nekkid" BTW. Didn't he used to be fond of "air baths" as he called them, where he would sprawl out nude in front of an open window?)

Bricker

09-21-2000, 07:17 PM

Originally posted by Gadarene
Bricker: Given your stated views, would I be correct in guessing that you hold a pretty favorable opinion of Felix Frankfurter and his jurisprudential philosophy? :)

(And hold these thoughts, guys; I want to start a Ninth Amendment thread tonight trying to reconcile that amendment with judicial constructionism.)

Well, no fan of the ACLU I -- and in general, I think Frankfurter was a pretty liberal guy socially, which doesn't really describe me.

But you're absolutely right that I admire his judicial restraint, even when it came to limiting civil rights he obviously believed in.

- Rick

beakerxf

09-21-2000, 07:43 PM

Originally posted by Lemur866
OK, I see some people are having some trouble with this concept.

No, I understand the concept that Justices cannot create rights just fine. I'm just confused as to how one determines which rights are inherent. However, Jodi later posted that she was ok with having justices interpret rights that were agreed upon by concensus, and yet not enumerated. So that answered one of my questions. When I had posted I was thinking of rights such as having children, good health, marriage, etc.

It takes a majority to amend the Constitution, to elect a legislature, and the President. Where in this process is the minority afforded any protection from the majority, if not through the courts?

(I concentrated on foreign history while in college, so please humor my Constitutional ignorance.)

Bricker

09-22-2000, 01:03 PM

Originally posted by beakerxf
It takes a majority to amend the Constitution, to elect a legislature, and the President. Where in this process is the minority afforded any protection from the majority, if not through the courts?

The courts can certainly protect the minority, consistent with the limits set forth by the majority.

If the Congress were to pass, and the states were to ratify, the Twenty-Eighth Amendment, and it said, "Nothing in this Constitution shall be construed as prohibiting the United States, or any state, from prohibiting the practice of abortion," then no court should, henceforth, declare anti-abortion laws unconstitutional.

Now, to the extent that women desiring an abortion are a minority, they would have no protection in that scenario, apart from their on-going First Amendment right to protest the law.

In other words, the system, in the end, is responsive to the will of the majority.

- Rick

Spoke

09-22-2000, 01:14 PM

Bricker wrote:
In other words, the system, in the end, is responsive to the will of the majority.

So then what's your beef? If you can convince the public that the Court has over-stepped its bounds in creating a "new" right, you can always overturn that "right" by amending the Constitution.

On the other hand, if you can't convince the public to overturn the newly articulated right, then perhaps the Court was right in the first place in coming to the conclusion that the right does exist by public consensus.

Problem solved, right?

Bricker

09-22-2000, 01:35 PM

Originally posted by spoke-
So then what's your beef? If you can convince the public that the Court has over-stepped its bounds in creating a "new" right, you can always overturn that "right" by amending the Constitution.

On the other hand, if you can't convince the public to overturn the newly articulated right, then perhaps the Court was right in the first place in coming to the conclusion that the right does exist by public consensus.

Problem solved, right?

Um....

Shut up! Who asked you?

:)

OK, you might just have a valid point there. I still maintain the courts have no business usurping the legislature, but I agree there's an ultimate, if somewhat drastic, fix available.

Note to self: contradicting one's first point in order to answer a second point is not too bright.

- Rick

headshok

09-22-2000, 10:46 PM

Here in southeast Virginia, an interesting case has been featured in the local media lately. A woman named Arathi Jayaram has been ordered by the authorities to either marry her live-in boyfriend or find a separate place to live; apparently her current situation violates Virginia's anti-fornication laws. An interesting twist to the story is that Jayaram is a member of PETA, and she is currently serving two years probation for hitting the US Agriculture Secretary in the face with a tofu cream pie.

My question is, does anybody know what the law is in Virginia regarding "fornication"? And what exactly constitutes fornication? Is it just "the deed"? What about third base? Second base? Holding hands? What if you are living together but not having sex (unlikely, I know, but still...)? Am I going to have to kick my girlfriend out of my apartment and start paying full rent?

Daniel Shabasson

09-22-2000, 11:55 PM

Why I am not a strict constructionist:

Because if you look at the rights literally spelled out in the constitution, you really do not get the protection from the government you need to live freely. On a literal reading, the following laws would pass constitutional muster:

A law banning the playing of musical instruments [music is not speech, and certainly not political speech, which is really all the first amendment protects]

A law making it a crime to be left handed [Due process originally referred only the procedural due process, not substantive due process -- the doctrine of substantive due process was fashioned in the 20th century by liberal justices. So if a law aganst left-handedness was passed, it would be fine as long as you were entitled to a trial on the issue. And Equal Protection (14 amenment) referred only to race or national origin, not to any other category. So left-handed people would not be protected]

Clearly, the constitution should protect minorities and people who have different lifestyles from the whims of the majority. On a literal reading, it doesn't. Now, the majority will probably not pass laws agains the things I mentioned, so my worry may seem wrongheaded. But it certainly possible that such laws could be passed -- let's say the economy falls apart: who knows what kind of mass hysteria or crazy religious beliefs could infect the people and lead to the passage of persecutive laws. Not likely, but certainly possible. [Actually, in my view, we do actually have such laws today, such as, for example, laws regulating sexual behavior, which is clearly as important to most people as listening to music} And look, slavery and segregation were allowed under the literal reading of the constitution -- it was only a strict constructionist court that allowed these evils to persist for so long. The legislatures did diddly-squat to change these evils. The role of the court is to step in and restain the legisalture. That is the whole point of having an independent judiciary.

The spirit of the constitution, and not the literal letter of the text, is what should govern the court's role. Can you name an instance where the court's fashioning of a right was not more enlightened than the whims of the legislature? The court is always progressive and helpful to the oppressed than the legislature. So an activist court is a good thing.

And I think the founding fathers understood that the court would interpret the constitution as time went by to more fully realixe the whole project of the constitution itdelf, which was after all to allow us to pursue our happiness free from gov't intrusion.