Rights? What's a Right?

[Polycarp]

I'm starting this thread in GD with the idea of exploring, and perhaps arriving at a mutual understanding of each others' positions, regarding the issue of what constitutes a right and what rights are guaranteed.

According to one school of thought here, the "natural rights of man" are guaranteed by the Constitution, largely through its Ninth and Fourteenth Amendments, and it would appear that it is on this school of thought that Mr. Justice Kennedy hung his hat in the recent "Texas sodomy" decision.

But the issue has been around since well before that decision, and it would appear from numerous comments that we have been talking past each other, with one side convinced that the other is asserting that a judge (or at least a SCOTUS justice with four others on his side) can find a right anywhere he wants to, and write it into the Constitution, while the other side seems to believe that their opponents are convinced that there are no rights except those specifically listed, which are to be construed as narrowly as possible.

This is a sad state of affairs. And it's in hope that we can achieve an understanding of each others' positions, and perhaps some common ground, that this thread is started. I want to make the firm request that nobody make assumptions about what the other person is saying, in order to argue against them, but rather to ask and seek redefinition where it appears that clarity is a problem.

I'm going to start by setting forth my impression of the stance taken by the "strict construction" side, eminently by Dewey Cheatem Undhow -- not as a parody or straw man nor in the expectation that I have it accurate, but as a basis for discussion, including particularly correction and clarification by Dewey and others who largely agree with him.

Using the quote function to set off that description for clarity's sake, but specifically denying that it's a quote from anyone, then, here's what I grasp that the Deweyite position is:

There may very well be a large number of "rights" (call them rights¹) which might be claimed by persons and/or extended by the governments they set over each other.

This, however, is not germane to American Constitutional law. The rights of American citizens that are Constitutionally protected are set forth in the Constitution, and particularly in the first eight Amendments. (The right not to be enslaved, the right to vote if you are 18 years of age, etc., are elsewhere, but the key rights are enumerated in Amendments I-VIII.) These may be referred to as "rights²."

There may very well be other rights which it is the intention of the government, Federal or state, that the people enjoy without let or hindrance. Such rights would be set forth in the State Constitutions, federal and state statutes, etc., and it is to protect the power of Congress and the States to create or recognize such rights that the Ninth Amendment becomes anything more than a tautology or nullity. These rights are subject to encroachment by the appropriate legal mechanism by the body which created or recognized them, and we may call them rights³. For example, the right of laborers in a given industry to join in unions and bargain collectively is a statutory right, revokable by the Congress which enacted the statute recognizing it.

All rights are subject to regulation in a manner set forth by the court and involving degrees of scrutiny -- so that a law which impedes the exercise of a right is potentially constitutional depending on whether it advances a legitimate state interest, advances a necessary governmental function, etc., with the right of the individual and the nexus of the state regulation weighed against each other. Freedom of speech or of the press may thus be understood to include the right to advocate armed rebellion against the United States or to produce child pornography, and the power of the government to intrude on that right in order to bar that offense is tied to the essentiality of the governmental act vs. the degree to which the individual's freedom is impeded.

Thus, while rights¹ may be acknowledged to exist, they are not Constitutionally protected unless they are either rights². Any statute impeding a right³ is putatively Constitutional, regardless of how "uncommonly silly" it might be, and a decision finding otherwise is ultra vires.

The effort to find such "rights" constitutes a case of [eerie voice]Substantive Due Process[/eerie voice], a Constitutional law concept that embraces the work of the Four Horsemen in the 1930 and their predecessors in Lochner and other decisions that any social regulation violates individual liberty of contract and the conceptualizations of the Warren Court (and to a lesser extent the Burger Court) to find enormous quantities of legislation unconstitutional as violating personal civil rights. It briefly means that there is a constitutional guarantee not just to due procedure but to substantive justice as seen by the judges of the day, and is rightly rejected as enabling them to write whatever they like into the law.

The opposition asserts that there is a common consensus of the fundamental rights of man, of which the awareness is an evolving thing, so that personal rights taken for granted by most people which were not enumerated can, when circumstances call for their identification, be protected under the Ninth and Fourteenth Amendments and by logical corollaries (unfortunately once termed "penumbrae") from the enumerated rights. Thus, the fact that the Constitution does not explicitly recognize a right to marry or to travel is no barrier to their being recognized -- these two actions being among the sorts of fundamental rights that were contemplated in the adoption of the Ninth and the protection of the "privileges and immunities of American citizens" in the Fourteenth.

With James Wilson, we say, "Enumerate all the rights of man? I am sure, sir, that no gentleman in the late [Constitutional] Convention would have attempted such a thing!"

We, or at least I, read Mr. Kennedy's assertion in Lawrence v Texas as defining the right of human beings to autonomy in whom they will associate and have intimate relationships, sexual or not, as among these fundamental rights so protected. And I note that Mr. Kennedy explicitly limited his understanding of this right to autonomy to exclude a great deal of what stands leering on various levels down the slippery slope.

The above is submitted for review and comment by the Dopers with an interest in it. The definition of the Deweyite stance is specifically intended to be for correction to more clearly represent that stance. It is not my intention that this thread flame or misrepresent anyone, but deal with Constitutional law issues regarding the conceptualization of rights.

[Stratocaster]

Originally posted by Polycarp
The opposition asserts that there is a common consensus of the fundamental rights of man, of which the awareness is an evolving thing, so that personal rights taken for granted by most people which were not enumerated can, when circumstances call for their identification, be protected under the Ninth and Fourteenth Amendments and by logical corollaries (unfortunately once termed "penumbrae") from the enumerated rights.

Very interesting topic, Poly. My reaction to the above is that an "evolving judicial awarenesses" is a dangerous mechanism for identifying rights not specifically enumerated. Am I understanding you to say that the SC simply notices a right that would have escaped their notice, say, in the nineteenth century (though it would always have existed), but that their notice now (or then) has no real relationship to the text of the Constitution?

This is shapeless to the point of permitting judicial fiat, it seems to me. The SC's awareness is obviously not the same as that belonging to the legislature that enacted the law in question. Why does the SC's "win"? On what do they base the opinion if not on an identifiable constitutional right? Or do I misunderstand you?

Sorry, I'm not the constitutional scholar you were hoping for (but I will follow this thread closely).

[zwaldd]

I believe a right is any action that is protected from infringement in some way.

The Bill of Rights legally protects actions that the FF's decided were crucial to their vision of national freedom.

[BrightNShiny]

I have a question, then....

Which viewpoint does Plessy v. Ferguson fall under? And which viewpoint does Brown v. Board of Education fall under?

[Beagle]

I like this outline of DP because it includes procedural due process.

In that, the "how" is procedural due process. Is a law too vague? Is it applied fairly to all? Does a law presume guilt? A vagrancy law might be declared too vague if the definition of a vagrant is not detailed enough. A law that makes wife beating illegal but permits husband beating might be declared to be an unfair application. A law must be clear, fair, and have a presumption of innocence to comply with procedural due process.

In that context, this,

Any statute impeding a right3 is putatively Constitutional, regardless of how "uncommonly silly" it might be, and a decision finding otherwise is ultra vires.

A statute has a certain presumption of validity coming into court. Being an enactment of duly elected legislators, the statute will be given due deference, a construction to make it effective, not absurd, etc.

After that, it's cut-and-paste. Just kidding, sort of.

But, to say that a law can be "uncommonly silly," IMO, ignores fundamental procedural due process. As always, it depends on your definition of "silly." SDP is a far more nebulous thing. Obviously, there is no explicit right to privacy in the US Constitution. Going much further than that is not something I am prepared to do. Penumbras and emanations abound. Polycarp, You forgot emanations. That certainly clears things up. The concept makes sense. The wording is obviously imprecise.

[Beagle]

"In that context, this," (quote)

is, IMO, not an accurate description of the entirety of remedies available to someone challenging a statute as a violation of a right.

[Dewey Cheatem Undhow]

I think that's a fair outline, Poly, at least on first reading, although I reserve the right to further clarify as the thread progresess. I'd like to add a couple of things:

1. I like to think of strict constructionism as as a coherent judicial philosophy that fits into a consistent framework for government. I would readily agree that many self-described "strict constructionists" only label themselves as such because they favor the outcomes it provides in the modern era, e.g., because those results tend to produce socially conservative outcomes. I think many of those folks would applaud a modern-day Lochner, not because it fits a consistent judicial philosophy, but rather because it invalidates a liberal policy outcome (namely, worker protection laws).

I categorically reject that view. If Roe is wrong, so is Lochner. One's constitutional philosophy ought not be driven by the outcome of a particular case.

I note this only because all too frequently proponents of strict constructionims are slurred as bluenosed prudes who want nothing more than to rain on everyone's parade. That is not true, at least not for those who have not taken its mantle up out of political convenience. Strict constructionists believe as they do because they believe there is a higher principle at stake than the outcome of a particular case.

2. That principle is self-governance. Strict constructionists believe deeply that the citizenry ought to be able to chart their own course. They believe it is wrong to deny the people the right to shape their own societies without a concrete basis for doing so. They believe that the best results come from socieities experimenting, retaining what works and rejecting what doesn't. They also recognize that democracy tends to be self-correcting: it is much easier to vote out bad decisionmakers and repeal a bad law than it is to undo a Supreme Court precedent.

3. It's important to realize the Constitution is not a magical document. It did not spring fully formed from the ether. It is a product of the democratic process. Its legitimacy is derived from that democratic process. That being the case, it is important that only those provisions resulting from the democratic process be legally cognizable -- in short, the text of the document.

The Constitution is a democratically-agreed upon set of limitations on future legislatures. It is a deal made with future generations. It is wrong to go beyond the terms of that agreement. That is why strict constructionists oppose the finding of rights not found within the text of the document itself -- that is no more acceptable than, say, the bank arbitrarily changing the terms of your home mortgage halfway through its term.

That's all I can think of for now; please recognize that the above is more a random collection of my immediate thoughts than an attempt at a comprehensive philosophical exegesis. I'm sure there will be more later.

[Alien]

I have a question I've been wondering about for some time which I also posted in another thread about rights, though I havent' received an answer:

I thought that Constitutional rights could not be revoked - that the government cannot take those rights away from its citizens. Yet, I've read that convicts has had their right to vote taken away from them. How is that legal? Or isn't voting in the Constitution?




quote:
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Originally posted by The Ryan
Now, if the word "right" is interpreted as it is used in the Bill of Rights, this means that the government may not interfere with a person trying to secure these things.
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quote:
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Originally posted by The Ryan
In the constitution and Bill of Rights, the term "right" is used as something which the people have and which the gov't may not infringe upon. Rights are used to deliniate those areas into which the gov't may not intrude.

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[Alien]

I'm sorry, please ignore the quotes in my post above, they belong to another thread.

[Whack-a-Mole]

Originally posted by Bob Cos
This is shapeless to the point of permitting judicial fiat, it seems to me. The SC's awareness is obviously not the same as that belonging to the legislature that enacted the law in question. Why does the SC's "win"? On what do they base the opinion if not on an identifiable constitutional right?

I was always of the opinion that the Founding Fathers setup our system of government (checks and balances) precisely because they knew they couldn't account for all possibilities themselves nor account for changing mores and values as the society evolved.

I, for one, think it is crucial that the SCOTUS be allowed 'legislate from the bench'. Clearly we have seen instances such as Brown vs. Board of Education where 'judicial fiat' was critical in making the US a better place.

It would be near impossible to try and ennumerate every specific 'right' US citizens should enjoy and keep up with it. It seems a far better state of affairs that the SCOTUS be allowed to infer rights citizens should enjoy from those enumerated in the Constitution. For those who don't like that idea realize that the SCOTUS is not the final word. Mechanisms exist to undo their decisions. If the Lawrence v Texas decision (as an example) is deemed to be overreaching then methods exist for amending the constitution to address it thus undoing the SCOTUS decision.

In short, I would rather live in a country where the presumption is that I do possess a 'right' without it being specifically listed in the Constitution. Taking rights away should be the more difficult course of action...not granting them. If you want to restrict my freedoms then be prepared to submit it to the country for debate and vote.

[minty green]

Originally posted by Dewey Cheatem Undhow
One's constitutional philosophy ought not be driven by the outcome of a particular case.

If one's constitutional philosophy is impervious to the outcome of a case, that constitutional philosophy is in dire need of rethinking.


Interesting thread idea, Poly. I'd actually been thinking myself about starting a thread inquiring about where we get our ideas of how to interpret and apply the law. Unlike some people , I'm quite willing to admit that many--but not all--of my legal positions coincide with my personal positions developed years before I went to law school. (Of course, in the vast majority of actual legal issues, I don't give a personal damn and am happy to argue either side, depending on who breaks out the checkbook first.) So, how is it that we take our personal opinions and incorporate them with the pre-existing structures of the law?

I don't think this is an easy question to answer, but I think any answers take us rather closer to figuring out what it is that really separates the participants in these discussions.

[Stemba]

I'd like to venture the concept that mankind have no rights, merely legally (constitutionally) protected privlidges and natural (inalienable) states of existance which. The idea that humankind have any true 'rights' is actually a silly concept. To quote one of my favorite authors (who will go unnamed, points to whoever knows him):

" ...since a human being has NO NATURAL RIGHTS OF ANY NATURE...Ah, yes, the 'unalienable rights.' Each year someone quotes that magnificent poetry. Life? What 'right' to life has a man who is drowning in the Pacific? The ocean will not haerken to his cries. What 'rigth to life has a man who must die if he is to save his children? If he chooses to save his own life, does he do so as a matter of 'right'?...As to liberty, the heroes who signed the great document pledged themselves to BUY liberty with their lives. Liberty is NEVER unalienable, it must be redeemed regularily with the blood of patriots or it ALWAYS vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is NEVER free...The third 'right'?--the 'persuit of happiness'? It is indeed unalienable but is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore..."

You see, no rights are guarenteed. To understand 'rights' in a naturalistic sense, you have to look at the entirety of humanity to get a sense of what is 'universal' as far as being human goes. If you will allow, I'd like to dissect the articles of the United Nations Delceration of Human rights (http://www.un.org/Overview/rights.html).

Article 1:
To state that all persons are born 'free' and with 'dignity' would imply that liberty is a guarenteed universal. As far as dignity, well, I live in Sumter, SC, and this damn city has a lot of undignified activities going on (14 years running, top 10 WORST cities in the USA under 75,000 inhabitants.) Also to state that they are endowed with 'reason' and a consience is impossible. No person can be endowed with reason or a conscience. Both are cultivated in a cultural context (whether that context meets with the USA's or UN's stamp of approval is debatable.) As for acting in brotherhood, I'm all for it, but that sounds like a suggestion, not a 'right.'

Article 2:
This reads more like a preambulatory clause to a UN resolution than an actual right. In essense, if I'm reading this correctly, article 2 states that "You have these rights because of this right?"

Article 3:
See my above quote.

Article 4:
To this article, I submit the countries of Chad, Sudan, Mauritania, and the United Arab Emerates. In these countries, slavery is still practiced overtly. There are no known statistics (to my own knowledge) as far as covert slavery (hence the 'covert' part.) Again, another suggestion.

Article 5:
Another suggestion, although it is one I personally agree with (as far as torture, too many opportunities to abuse that.) As far as cruel, inhuman, and degrading, I agree with actually DOING things that way. Cruel, to make a point. Remember, IMHO, there is no 'natural' conscience, only a cultivated one. Pain would go greatly to cultivating a consicence. Inhuman and degrading would serve to show the rest of a society that it is bad, therefore sparing everyone the need to be flogged, hung, etc.

Article 6:
It's not a right, not a suggestion. Just a common sense statement which makes it universal for a person to have a set of social standards placed upon them.

Article 7:
Another suggestion, and another one I agree with.

Article 8:
Due process is not a right. Indeed, if the country in which a person is tried is a signatory to this document, then if the countries own constitutional law disagrees with this document, in whole or in part, then the arguement can be made that this 'right' isn't a 'right' at all.

Article 9:
Holy cow, something which actually is clear and makes sense. "It is your right not to be detained, arrested, or exiled on a whim." But, again, its only a suggestion.

Seeing as I'm getting a bit long winded, I'll pass on the rest. But do y'all understand my point? There are no rights, seen as a 'right' is nothing more than a privlidge backed by law, and as law is not universal, then right is not universal.

Anyway, that's my $.02.

[E-Sabbath]

Ah, Robert Anson Heinlein.

[John Mace]

I'm surprised that no one has brought up the 9th Ammendment:

[qoute]Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[/quote]

Doesn't this sort of leave the door pretty wide open? Maybe one of the lawyers here could weigh in on whether this is ever actually used in any meaningful way.

[DSeid]

I'd like to venture the concept that mankind have no rights, merely legally (constitutionally) protected privlidges and natural (inalienable) states of existance which. The idea that humankind have any true 'rights' is actually a silly concept.

No legal scholar I, but on this I'll give my wee bit.

"Rights" are the axiomatic basis of a secular society. They are no more provable, disprovable, silly, or sacred than any axiomatic statement of a religious system of thought. They are instead the postulates that a particular secular society accepts from which all else follows. As to the Heinlein quote: a bit silly that. All moral imperatives are balanced against reality and in conflict against each other at different times. Morals can be broken; rights can be denied - by humans or by nature - it has little bearing on whether or not we accept the axiom as true.

Axioms are true, by definition, within any system. In many societies the axioms were provided by the religion directly. In the US rights may have been inspired by religions and by thoughts emenating from the Enlightenment, but were indeed special for providing a basis for society that did not require accepting any particular religion but instead could form a common ground across many faiths.

Given that, I would argue that "rights" not mentioned are not axioms of the system unless they deductively follow from the rights mentioned explicitly. They may be axioms that we accept within our contempory society, but they are not constitutional axioms and should not be part constutional decision making.

[minty green]

Originally posted by John Mace
[b]I'm surprised that no one has brought up the 9th Ammendment:

Doesn't this sort of leave the door pretty wide open? Maybe one of the lawyers here could weigh in on whether this is ever actually used in any meaningful way.

No, it is not. Apart from one redundant reference in one of the birth control cases, the 9th Amendment is not and never has been the source of any subtantive right. It merely provides that the government cannot deny an alleged right on the basis that it is not expressly enumerated in the Constitution.

[Dewey Cheatem Undhow]

Originally posted by minty green
If one's constitutional philosophy is impervious to the outcome of a case, that constitutional philosophy is in dire need of rethinking.

Oh come now. In context my meaning was clear: one shouldn't carry the banner of a jurisprudential philosophy when it achieves a conservative or liberal outcome (depending on your particular proclivities) but drop that philosophy when an opposite result ensues. He who says Roe must say Lochner.

My point was that many who champion the strict constructionist theory do so not out of a principled understanding of what that theory is trying to accomplish, but because that theory nets results that wins them political popularity. I think many assume that this sort of political scoring is what drives that theory. That's an incorrect assumption, and one I was trying to dispell.

[Dewey Cheatem Undhow]

Originally posted by Whack-a-Mole
I, for one, think it is crucial that the SCOTUS be allowed 'legislate from the bench'. Clearly we have seen instances such as Brown vs. Board of Education where 'judicial fiat' was critical in making the US a better place.

So the ends justify the means, then?

I wonder how many would have agreed with your sentiment when judicial fiat was being used to protect your "right" to work for over twelve hours a day at less than minimum wage.

[Polycarp]

Originally posted by minty green
No, it is not. Apart from one redundant reference in one of the birth control cases, the 9th Amendment is not and never has been the source of any subtantive right. It merely provides that the government cannot deny an alleged right on the basis that it is not expressly enumerated in the Constitution.

I gathered that, minty, and on rereading Randy Barnett's brief summary in one of my references, I see that his discussion, though headed "Ninth Amendment," generally deals with the finding of "unenumerated rights" as implications of ones that are enumerated. I don't have ready access to two cases he appears to allege depended on the Ninth, Richmond Newspapers, Inc. v. Virginia (1980) and Crandall v. Nevada (1867) -- would one of you who can access Westlaw and Lexis see what the nexus of these cases and the Ninth might be?

Though it's merely philosophical theorizing without a definitive tie to either case law, the Constitution, or any writings on law that I've seen, I think that if I were to attempt to define "fundamental right" I would make an assertion similar to the one that the Orthodox Church makes on what comprises Holy Tradition -- what has always and everywhere (save for the occasional lunatic fringe group) been held to be the truth, as newly applied at a point where conflict has called for its identification and specification. Prior to Loving there was no need to identify a "right to marry" -- no state had ever attempted to proscribe people from marrying in a manner that led to a case or controversy. To be sure, the focus of Loving was in condemning miscegenation laws, but in the course of that it identified the idea that one had the right to marry whom one chose to (subject, of course, to the same right inherent in the intended spouse!). And I think if you had polled the Founding Fathers and inquired, they would have been unanimous in saying that a free man (or woman) has the right to choose to whom he/she will be joined in wedlock.

Similarly, the First Amendment right to free association and the Fourth Amendment right to be secure in one's person from unreasonable invasion by government instrumentalities furnish grounds for recognizing the right to make autonomous choices in personal, intimate affairs, which would then be a "privilege or immunity" of citizens protected by the Fourteenth from government regulation. That parents or social pressure may influence with whom a given adolescent may date is inconsequential; I believe any state law that attempted to erect classes for the purpose of restricting the dating of adolescents to "their own kind" by someone's standards, would definitely be found to be a violation of their personal liberties. And, of course, strict constructionists would assert that there is no "right to date" in the Constitution -- and be correct in the letter, though in error in the spirit.

In short, what I'm suggesting is that there is an amorphous set of things that nearly all American citizens have always conceived of as being their God-given rights. Only when governmental regulation intrudes on one such right is it lifted out from the "soil of liberty," washed off, and given Constitutional scrutiny. And it is when a set of citizens is barred from such right by the actions of another group through governmental means that such cases come to identify and define such rights.

Lawrence v. Texas, contrary to all the hoopla, did not define a Constitutional right to commit sodomy on a consenting other. Rather, it did something quite deeper and more important. It said that Americans have the right to decide with whom they will fall in love, form a pair bond with, and enter into intimate relationships, which may or may not involve sexual contact, and that it is no business of government to attempt to decide who may or may not exercise that right.

And pace Dewey, anyone who attempts to use "strict construction" to claim that Kennedy's explicit definition of that "right to autonomy in personal relationships" cannot be found in the Constitution is making an rgument that flies in the face of the broad phrasings of the law, by arguing that only the narrowest definition of the guaranteed right. It would be like saying that burning at the stake is not contrary to the Eighth Amendment because the relevant clause does not specify what constitutes a "cruel and unusual punishment," or that "freedom of speech" does not include the freedom to be heard by willing listeners.

That right is implicit in logical corollaries based on enumerated rights, protected by the Ninth and Fourteenth as among those rights legally enjoyed by Americans at all times and places, and only came to light here because a state law attempted to define one class of citizens who were not entitled to exercise it.

[Dewey Cheatem Undhow]

Originally posted by Polycarp
And pace Dewey, anyone who attempts to use "strict construction" to claim that Kennedy's explicit definition of that "right to autonomy in personal relationships" cannot be found in the Constitution is making an rgument that flies in the face of the broad phrasings of the law, by arguing that only the narrowest definition of the guaranteed right. It would be like saying that burning at the stake is not contrary to the Eighth Amendment because the relevant clause does not specify what constitutes a "cruel and unusual punishment," or that "freedom of speech" does not include the freedom to be heard by willing listeners.

No, it's not like saying that at all. There is a cruel and unsual punishment clause, and that necessarily entails deciding what is "cruel" or "unusual." There is a free speech clause, and its use necessarily entails the presence of an audience.

Not so with what we're talking about. What's the constitutional hook? Due process? Then we have to return to Llewellyn's quip that there's no getting around the fact that the word following "due" is "process." Substantive due process is a contradiction in terms.

Using due process in this manner is almost Orwellian in its manipulation of the English language. It is the convenient redefinition of words to embrace the issue du jour. When a phrase becomes so infinitely malleable, it loses all meaning.

What then? The ninth amendment? No, not hardly. In addition to the reasons minty has outlined, there is a real problem with finding an "amorphous set of things that nearly all American citizens have always conceived of as being their God-given rights." Who decides this? How? Even the Supreme Court doesn't claim divine inspiration. Their views are not derived from the views of "nearly all American citizens" or from the deity himself, but rather from their own peculiar set of beliefs and biases. Why are they in any better position to judge what rights "nearly all American citizens" hold dear than the legislatures elected by those same citizens?

I think "nearly all American citizens" should speak for themselves, through their representatives, rather than relying on an unelected, unaccountable insular minority which may or may not accurately speak on their behalf.

[Sam Stone]

I prefer the Hobbesian viewpoint.

Basically, there are two different kinds of 'rights'. Natural rights, and political rights.

A natural right is anything you can do. If you can swing your fist and hit someone, you have a 'natural right' to do so. But of course, the other person has the right to hit back.

When people come together into a community, they recognize that it is to everyone's advantage to forego some natural rights. I'll give up my right to punch you in the face, if you agree to give up your right to punch me in the face.

To ensure that people follow this contract, a sovereign is established.

Inalienable rights are those rights that we agree can NOT be bargained away by the populace. They are the fundamental rights that all people must retain for themselves.

So when someone asks if you have a 'right' to drive, the answer is that of course you do, if you can get a car and fill it with gas. The state puts limits on that right, however. You must be licensed, and you must abide by the rules of the road. But when people start with the assumption that there is no right to drive, and therefore the state can stop anyone from driving for every reason, they turn the equation on its head. You start from the right to drive, and then the burden is on the state to justify modifying or removing that right.

[Scott Dickerson]

POLY:

A typically well-crafted thread on an important topic, which I typically cannot resist contributing to.

As I am not a lawyer or Constitutional scholar, readers may find reason to dismiss my comments out of hand--but I hope you won't.

1) The word "rights" has no fixed meaning. It has been used to confer honor on various things; or perhaps I should say, to confer various kinds, modes, and degrees of honor.

2) Furthermore, there is a tendency for those meanings to vary with time and place: it reflects the culture in which it is used. (Thus it is like "love.")

3) I gather that "rights" (as in "Bill of Rights") was used in post-Revolution America to designate certain privileged forms of conduct that the governing authority could not impair or impede, howsomever much they might wish to. Over time this has become increasingly grafted to Continental (ie, French) notions of the "natural rights of Man"--which adds the idea that the forms of conduct are not merely "recognized" as rights by this or that human authority, but indeed "really are" rights by nature (as much as 2 + 2 "really is" 4). Thus any government is objectively wrong to impair such rights, whatever "the law" may say.

4) Some agree that there are such "natural rights," some do not. Surprisingly, Robert Bork is said to hold to a "natural rights" doctrine (as do most pro-lifers, I think).

5) I myself believe that there are "natural rights" arising from our natures as mortal human persons. It is morally wrong for a government, or electoral majority, to impair such rights; and not morally wrong for an individual to resist such impairment.

6) Those natural rights cannot be (fully and exhaustively) enumerated. Furthermore, even those that can be set down on paper often elude a precise and unambiguous verbal formulation. We're dealing with a deeper level of reality than The Law or The Constitution, a level wherein human language only imperfectly limns the silhouette of the real subject.

7) Though there are substantial numbers of persons who are not willing to affirm a "natural rights" approach to law and governance, some of their reluctance arises from an intuitive grasp of the dilemma expressed in #6 preceding. Others actually "accept" the doctrine without "affirming" it, as they are philosophically opposed to subjective or intuitivist elements in decision-making (not recognizing that they do in fact use such elements continually, IMHO). Anyone who evinces shocked disapproval of a Constitutionally "possible" law (such as a law forbidding people to walk upright on their hind legs) is giving evidence of a "natural rights" foundation somewhere within.

8) Precursorial elements of a natural-rights doctrine are part of the American political tradition, not an alien import. The Declaration of Rights of 1774, by the Continental Congress, speaks of retained rights superior to any sovereign power. The Declaration of Independence famously spreaks of "the laws of nature and nature's God." Call it self-serving rhetoric, the idea was surely at large.

9) As is often observed, the Articles and the successor Constitution were something of a step away from a natural-rights philosophy. There is a reference to the "privileges and immunities of citizens," which are not spelled-out and, IMHO, refers to the normal, natural, and customary rights accrued by a person merely by hirs being a citizen. (There is no indication, one way or the other, that such rights are limited to those recognized at the time of writing.)

10) The Bill of Rights may be regarded as a partial return to the natural-rights philosophy. It is at least worth noting the use of the term "right" in Amendments 1, 2, 4, 6, 7, and 9. It doesn't seem a logical reading to regard "rights" as being used in the "political" as opposed to "natural" sense (the distinction I make in #3 above): the statements are not reminding the government of privileges it has previously conferred but is in danger of ignoring, but rather seem to be identifying certain preeminent rights extant yet not politically conferred. Note that "the right of the people peaceably to assemble etc." might have been worded as "the ability of the people etc.". The difference is the recognition of a (natural-) right.

11) None of which is to imply that the putative natural rights recognized by the wordage of the Constitution really ARE natural rights; only that the Framers and Ratifiers were willing to formally agree that they were to be so-regarded.

12) Now we come to the 9th and 10th Amendments. Judicial custom and popular mythology as decided that these sets of words, among all in the Constitution, are to be regarded as superfluous. Their authors probably did not so regard them. Nor did the ratifiers approve a codicil stating "this Constitution is the supreme law of the land, excepting Amendments 9 and 10, which are only expressions of nice sentiment and have no effect." As a matter of fact, there has been recent recourse to the 10th, regarding a states' rights issue. But with one brief and half-hearted exception, the 9th (which appears to recognize that persons have certain unenumerated--presumably "natural"--rights that government cannot disparage--presumably by legislating against them) and the final clause of the 10th (referencing certain powers reserved to "the people") have been ignored at the highest level of judicial interpretation. Why?

13) Why indeed? I'm not going to let this go. Whenever I have brought the issue before the SDMB on various "has the Court gone too far?" threads, I have either received no response, OR been given a short course in the historical, and now-prevailing, attitude toward Amendments 9 and 10. NONE of that is dispositive. The words are there; they have as plain a meaning as anything else in the document; they absolutely DO provide a TEXTUAL BASIS for overturning particular legislative acts. They confer upon SCOTUS a positive obligation to scrutinize the products of the Congress and the State Legislatures to ensure that they are not "disparaging" certain unenumerated rights retained by the people, nor infringing upon any of their reserved powers. For a Justice to refuse this obligation constitutes malfeasance, thus a "bad behavior" warranting impeachment.

14) It may be true that this doctrine of a substantive 9th and 10th gives the Court more power than it wants to have; surely more than others want it to have. Some may argue that it isn't our "style of government" or "isn't democratic." Well, we are not promised anything like a plebiscitory majoritarian democracy, but rather a republic with a certain form and structure. I for one have no objection to SCOTUS taking a co-equal role, with the Executive and the Legislative, in shaping our society. Let it function as a council of wise elders reigning-in the more politically-driven branches: perhaps if we recognized it as such in an open way, our representatives would be more careful in their appointments. (We need fewer former lawyers-turned-judges, more historians, ethicists, and philosophers.) There is popular recourse via the impeachment process (which only requires that behavior be deemed "bad"), expanding the membership of SCOTUS (still possible despite FDR's experience), or our two methods of Constitutional amendment.

15) There is no guarantee that natural rights will never be in (apparent) conflict. A pregnant woman's putative right to medical autonomy and privacy may conflict with the putative right of a zygote-embryo-fetus to be brought to term. The implied contractual expectations of a married person may be impaired by such apparent rights as are established by no-fault divorce-on-demand. The presumed right of voters to have their moral convictions expressed through legislation may run up against the presumed right of adults to be physically intimate in whatever manner fulfils them. All three branches are, or ought to, make their distinctive contributions to a fair and reasonable resolution. "Real" rights may be eternal and transcendent, but our knowledge of them is temporal, limited, and partial: thus the list of rights must be expected to evolve. Otherwise we elevate an unhealthy obsession with mere consistency above all other human values--and THAT is nowhere to be found in our Constitution.

[minty green]

Originally posted by Dewey Cheatem Undhow
[O]ne shouldn't carry the banner of a jurisprudential philosophy when it achieves a conservative or liberal outcome (depending on your particular proclivities) but drop that philosophy when an opposite result ensues.

I did not claim you should. But one must pay a certain amount of attention to the ends, not just the means. When the means take you to ridiculous or destructive ends, that's a pretty good indication that your means need some adjusting.

[Dewey Cheatem Undhow]

Originally posted by Scott Dickerson
12) Now we come to the 9th and 10th Amendments. Judicial custom and popular mythology as decided that these sets of words, among all in the Constitution, are to be regarded as superfluous. Their authors probably did not so regard them. Nor did the ratifiers approve a codicil stating "this Constitution is the supreme law of the land, excepting Amendments 9 and 10, which are only expressions of nice sentiment and have no effect." As a matter of fact, there has been recent recourse to the 10th, regarding a states' rights issue. But with one brief and half-hearted exception, the 9th (which appears to recognize that persons have certain unenumerated--presumably "natural"--rights that government cannot disparage--presumably by legislating against them) and the final clause of the 10th (referencing certain powers reserved to "the people") have been ignored at the highest level of judicial interpretation. Why?

I'll simply add what I wrote in that other thread on this topic:

----------------------------
I think the proper reading of the ninth amendment is as a safeguard against exclusivity. Certainly, there are other sources of rights: state constitutions, federal and state statutes, treaties, etc, etc. The ninth amendment simply prevents someone from saying, say, that New York's constitution cannot provide heightened free speech protections on the grounds that the federal constitution is an exclusive list.
----------------------------

Contra to your interpretation, that does not make the 9th amendment "superfluous" or "only expressions of nice sentiment [which] have no effect." That view gives the ninth amendment an important role in our constitutional scheme.

You ask why it's been "ignored" -- well, I would say for the same reason the third amendment has been all but ignored. There just isn't all that much to say about it. The amendment is reasonably clear. No one challenges, say, a state constitution's provision of additional rights because the ninth amendment makes clear that such a challenge would be folly.

[Dewey Cheatem Undhow]

Originally posted by minty green
I did not claim you should.

So, basically, you were responding to a point I did not make.

But one must pay a certain amount of attention to the ends, not just the means. When the means take you to ridiculous or destructive ends, that's a pretty good indication that your means need some adjusting.

You may be right if a particular philosophy consistently brings you to destructive ends. I do not think a committment to self-governance has led us so far astray -- quite the opposite, really. In which case I will join Justice Holmes in helping my fellow man to Hell if that is his intended destination.

[minty green]

Originally posted by Dewey Cheatem Undhow
I do not think a committment to self-governance has led us so far astray -- quite the opposite, really.

In general, you're quite right. And in fact, damn few legislative enactments are ever invalidated by the courts. But it is incoprrect to claim that "self-governance" has not sometimes led the country far astray in some very serious ways. Happily, checks and balances apply to all of the branches of government, including the legislative branch.

In which case I will join Justice Holmes in helping my fellow man to Hell if that is his intended destination.

Except, of course, that we're not talking about helping a man to hell. We're talking about the legislature compelling people to go to hell. Rather an important distinction, I think.

[Polycarp]

Just to acknowledge that I've ben reading responses with great interest and pleasure -- in particular the philosophical exploration of the concept of "right" by Sam Stone and Scott Dickerson, and am pleased that w seem to be working at communication and analysis more than confrontationalism. (Dewey, many thanks for your efforts in dealing with the issue. As somebody -- Scott? -- commented somewhere today, you deserve compliments, not criticism, for standing firm by a school of Constitutional analysis that you subscribe to, rather than abusing it as the people you distanced yourself from in point 1 of your first response do. Though I often disagree with you, I can respect the integrity of your position. Thanks for sharing it.)

[Scott Dickerson]

DEWEY:

You say "...I think the proper reading of the ninth amendment is as a safeguard against exclusivity. Certainly, there are other sources of rights: state constitutions, federal and state statutes, treaties, etc, etc. The ninth amendment simply prevents someone from saying, say, that New York's constitution cannot provide heightened free speech protections on the grounds that the federal constitution is an exclusive list... ...The amendment is reasonably clear. No one challenges, say, a state constitution's provision of additional rights because the ninth amendment makes clear that such a challenge would be folly."

I suppose, then, we disagree on what constitutes a proper reading of the 9th (and the 10th?).

I also find the amendment reasonably clear, yet its clarity leads me to an entirely different conclusion as to its meaning: or rather, as to the range of its reasonable and defensible interpretations.

We agree that there are other sources of rights than the explicit enumerations of our federal Constitution. I maintain that the legislative and judicial mechanisms of BOTH the federal and state governments are without authority to impair those rights (because they are indeed acknowledged to be RIGHTS, not transient privileges or policy choices bestowed by government); and that any such ostensible violation is a matter which, because it arises under the Constitution (namely these two amendments), is subject to SCOTUS review.

You do not agree. I ask you:

1) What leads you to your interpretation as opposed to mine? (and don't forget the 10th, please)

2) Let's posit that a majority in Lawrence was operating under an unstated acceptance of my interpretation to some significant degree. Would you still characterize the decision as lacking in textual basis, as opposed to working from a textual basis which you find unworthy? (It seems to me there's a difference.)

[Dewey Cheatem Undhow]

Originally posted by minty green
In general, you're quite right. And in fact, damn few legislative enactments are ever invalidated by the courts. But it is incoprrect to claim that "self-governance" has not sometimes led the country far astray in some very serious ways. Happily, checks and balances apply to all of the branches of government, including the legislative branch.

Checks and balances which are themselves the result of the democratic process. Legitimacy is only derived from the consent of the governed.

Except, of course, that we're not talking about helping a man to hell. We're talking about the legislature compelling people to go to hell. Rather an important distinction, I think.

And what, pray tell, do you think Holmes was referring to?

[Dewey Cheatem Undhow]

Originally posted by Scott Dickerson
1) What leads you to your interpretation as opposed to mine? (and don't forget the 10th, please)

As I noted in the other thread, I've gone more than enough rounds on this topic, and I'd rather not rehash it all again. Do a search on "ninth amendment" plus "dewey" and "polycarp" and you'll have plenty of reading. Pack a lunch.

The 10th amendment deals with powers, not rights, and thus is inapplicable here. It limits the reach of the federal government, making clear that any power not expressly reserved for the federal government is held instead by state and local government. As a conservative who favors decentralized government, I'm a big fan of the 10th amendment.

2) Let's posit that a majority in Lawrence was operating under an unstated acceptance of my interpretation to some significant degree. Would you still characterize the decision as lacking in textual basis, as opposed to working from a textual basis which you find unworthy? (It seems to me there's a difference.)

Yes, for the same reason I posit that the court's stated reason -- "substantive" due process -- is extratextual. Convenient redefinition is not a substitute for a genuine textual constitutional provision.

[minty green]

Originally posted by Dewey Cheatem Undhow
Legitimacy is only derived from the consent of the governed.

Hence, the revolution that erupted after last Thursday's decision was announced, right? Looks like there's plenty of consent out there to me, unless you're of the highly peculiar worldview that "consent" is only obtainable through representative democracy.

And what, pray tell, do you think Holmes was referring to?

Beats me--my specialty is the law, not apocryphal anecdotes. If you're suggesting that Holmes was expressing a deep and abiding love for the power of a majority to jail a disfavored minority, I think you and I have very different impressions of Mr. Justice Holmes.

[Dewey Cheatem Undhow]

Originally posted by minty green
Hence, the revolution that erupted after last Thursday's decision was announced, right? Looks like there's plenty of consent out there to me, unless you're of the highly peculiar worldview that "consent" is only obtainable through representative democracy.

Well now, isn't this adorable. Any decision made, no matter how unrepresentative or insular the body making that decison, can be considered to have the "consent" of the governed so long as it doesn't lead to armed uprisings? How very charitable. Why don't we just dissolve the Congress and install a benevolent dictator -- so long as no one raises arms against him, he can say, per minty, that he governs with consent.

Beats me--my specialty is the law, not apocryphal anecdotes. If you're suggesting that Holmes was expressing a deep and abiding love for the power of a majority to jail a disfavored minority, I think you and I have very different impressions of Mr. Justice Holmes.

Holmes was expressing a deep and abiding love for a system that allows people to chart their own course, even if he thinks the particular policy choices they make are downright stupid or even harmful.

And the quotation isn't apocryphal; it's from a letter Holmes wrote to Harold Laski in 1920.

[minty green]

Originally posted by Dewey Cheatem Undhow
[Well now, isn't this adorable. Any decision made, no matter how unrepresentative or insular the body making that decison, can be considered to have the "consent" of the governed so long as it doesn't lead to armed uprisings? How very charitable. Why don't we just dissolve the Congress and install a benevolent dictator -- so long as no one raises arms against him, he can say, per minty, that he governs with consent.

Yes, insofar as you're whining about a legislative-centric vision of "consent." There's all kinds of consent, Dewey. Among other kinds, there's the kind that caused 2/3 of both chambers of Congress and 3/4 of the state legislatures to say "Due Process? What the fuck does that mean? But it's got a good beat and we can dance to it, so ratify that sucker!" Then there's the kind of consent where nobody but Bill Frist says "Oh, the horror! Those usurpers in the Supreme Court have stolen the sacred right of our legislatures to send citizens to jail for touching each others' naughty bits! We must amend the Constitution forthwith so that we may imprison the queers and put the Supreme Court back in its place."

Then also there's the kind of consent of people who don't care that their legislators are all in favor of putting gay folk in prison, or who just think that repealing the estate tax is a whole lot more important than not sticking the queer folk in jail. Ah well, we all have to have our priorities.

Holmes was expressing a deep and abiding love for a system that allows people to chart their own course, even if he thinks the particular policy choices they make are downright stupid or even harmful.

Yep, I'm all for having people chart their own course. You can chart your own course straight for the gates of hades, for all I care. But I don't get to chart your course, and the legislature doesn't get to chart anybody's course based on whose adult genitalia they prefer to play with.

And to get back to the original point of the OP: 'Cause that's the way I was raised.

[Dewey Cheatem Undhow]

minty, I am not going to play this game with you. Rather than engage in a serious, idea-driven discussion, you resort to mocking indignation. Substance-free taunting is not the stuff of argumentation.

To wit: you know perfectly well that "due process" were not just two random words chosen from the dictionary; you know perfectly well that representative democracy is what "consent of the governed" refers to; and you know perfectly well that when I speak of allowing peoples to chart their own course, I am not speaking of an individual life but rather of the power of communities to shape themselves collectively.

Others in this thread who are decidedly not of the strict constructionist mindset have managed to have a respectful discussion without mocking the other side or deliberately misstating the other side's point. When you're ready to join Polycarp and the others at the adult table, we can continue the discussion.

[KellyM]

Originally posted by Dewey Cheatem Undhow
Oh come now. In context my meaning was clear: one shouldn't carry the banner of a jurisprudential philosophy when it achieves a conservative or liberal outcome (depending on your particular proclivities) but drop that philosophy when an opposite result ensues.

The problem with this is that jurisprudence is not merely a complicated puzzle with the goal being to solve the puzzle with the right answer. The exercise of jurisprudence is supposed to further the good of society. Any theory of jurisprudence that mandates any particular outcome, without regard to whether those outcomes will be beneficial to society, is morally bankrupt. Bringing benefit of the people must always be the goal of jurisprudence, not slavish adherence to dry formulas and complex rules of logic, no matter how cleverly constructed.

[minty green]

Mocking indignation? No sir. I am pointing out the weaknesses in your argument, which is always easy to do when one's opponent advocates an inflexible, unyielding doctrine.

To wit: I know perfectly well that "due process" means different things to different people; I know perfectly well that representative democracy is not the only means to measure "consent of the governed"; and I know perfectly well that when you speak of allowing people to chart their own course, you are speaking of the power of legislative majorities to send consenting adults to jail for nothing more than bumping uglies.

[december]

Originally posted by KellyM
The exercise of jurisprudence is supposed to further the good of society.

Supposed to? Supposed where? Not in the Constitution, and not in Marbury v. Madison.

Any theory of jurisprudence that mandates any particular outcome, without regard to whether those outcomes will be beneficial to society, is morally bankrupt. Bringing benefit of the people must always be the goal of jurisprudence, not slavish adherence to dry formulas and complex rules of logic, no matter how cleverly constructed.

Why stop at judges? Should policeman punish criminals they think the courts will treat too leniently? Should prosecutors used perjured testimony to convict defendants they think are guilty? Should Oliver North secretly transfer money to the anti-Commnists? Should Nixon preserve his Presidency (for the good of the country) by covering up the Watergate burglary?

There's a lot to be said for public servants to follow the rules and the formulas, even when they think they could do more good by ignoring them.

[Polycarp]

Dewey, a wak point in your assertiuon is that we are not a representative democracy but a Constitutional republic. While the people choose the members of the two houses of Congress, their state legislators, and a variable number of state executive branch officials, the President is chosen indirectly, and he in turn, with the advice and consent of the Senate, appoints the people who do most of the actual work of governance. And the powers of all the above are delimited by grundlagen -- the U.S. Constitution and the state constitutions, which delimit what such officials can do.

Included in that picture are the appointments of Federal judges. Their choice by the people is equally indirect as, say, the Secretary of State. And, having been nominated and confirmed by the same process, their job is the same in essence -- to carry out the considered and deliberate will of the people by working within and at the same time shaping the legal framework entrusted to them, indirectly, by the people.

In short, a judge ruling on constitutionality is no more and no less representative of the will of the people than is a given congressman or the president.

[minty green]

Originally posted by december
Supposed to? Supposed where? Not in the Constitution, and not in Marbury v. Madison.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

See also annotations.

[KellyM]

december, yes, you're right, there is something to be said for following rules and formulas. The problem arises when you put the rules and formulas ahead of the purpose of having the rules and formulas, which is what I think strict constructionalists do. The adherence to the rules has to be thinking adherence with room to recognize that the rule is wrong and must therefore not be followed.

I believe the Constitution itself states its purpose for existing. I recall it having something to do with the desire to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity". Seems to me that furthering the good of society describes those goals pretty well.

[Dewey Cheatem Undhow]

Originally posted by minty green
Mocking indignation? No sir. I am pointing out the weaknesses in your argument, which is always easy to do when one's opponent advocates an inflexible, unyielding doctrine.

The doctrine I espouse is neither inflexible nor unyielding. Democracy itself is remarkably flexible. Indeed, it is much easier to undo a bad legislative decision than it is to undo a bad Supreme Court decision.

To wit: I know perfectly well that "due process" means different things to different people;

But no serious person says "what the fuck does that mean," and shrugs their shoulders in blithe acceptance. Serious proponents of substantive due process at least attempt to construct an argument as to why it should mean more than fair procedures, and try to chart out the limitations of that theory.

You, on the other hand, just say "whatever, dude!" and embrace the power of the judiciary to de facto amend the constitution without any attempt to ascribe a principled basis for that decision. It is a purely ad hoc philosophy. Essentially, any judicial use of SPD where minty approves of the outcome is legitimate, and any other use is illegitimate.

Seriously. Is there any policy choice that cannot be undone under the substantive due process rationale? Is there any right that cannot be invented out of convenience to defeat a particular disliked bit of legislation? Where does it all end?

I know perfectly well that representative democracy is not the only means to measure "consent of the governed";

Thus spoke the tyrant.

and I know perfectly well that when you speak of allowing people to chart their own course, you are speaking of the power of legislative majorities to send consenting adults to jail for nothing more than bumping uglies.

I have no great love for the sodomy laws. They are wrong and immoral. But laws are not invalidated for being wrong or immoral; they are invalidated for being unconstitutional, and I can see nothing in the constitution that forbids those laws. The principle I am advocating extends well beyond one particular transient issue.

[Dewey Cheatem Undhow]

Originally posted by Polycarp
In short, a judge ruling on constitutionality is no more and no less representative of the will of the people than is a given congressman or the president.

You're kidding, right? Judges don't have to stand before the people every two to six years.

The appointment of judges to a life tenure is, by design, decidedly unrepresentative. Which is well and good as far as it goes: one wants, for example, the court to be insulated from public outcry when, say, they throw out evidence in a criminal trial based on an unconstitutional search. That insularity is a good thing when it comes to the application of constitutional provisions upon which the people have already decided. But the virtue of insularity becomes a vice when it comes to adding new provisions to the constitution.

[december]

Originally posted by minty green
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

minty, weren't you the lawyer who taught me that the Preamble couldn't be used to justify decisions?

Anyhow, that's a feeble point. Obviously the Constution is intended to make things better. It would be a strange Preamble that said its purpose was create a more flawed union, to reduce justice, and to leave us defenceless.

But, the point is, the Constitution doesn't say the judges or any other public servants can exceed their powers in order to make the country better. In fact, its entire Separation of Powers structure argues for the exact opposite.

KellyM, you don't explain why it's bad for a judge to be a strict constuctionist, but it's essential for all other public servants to strictly follow the law. E.g., the LA police may have believed it would help insure domestic tranquility to beat the shit out of violent criminal Rodney King. But, you and Ithink they were dead wrong to act on that belief.

Do you think judges have more wisdom than other public servants? Are they uniquely qualified to exceed their powers and promote the public good as they see fit? Or, is it OK for any government worker to do so, as long as you agree with the results?

In practice, there are checks on everyone in goverment except for the Supreme Court. If the Supremes decide to take the law into their own hands, there's nothing we can do about it. So, we might as well relax and enjoy it.

[Dewey Cheatem Undhow]

Originally posted by KellyM
The problem arises when you put the rules and formulas ahead of the purpose of having the rules and formulas, which is what I think strict constructionalists do.

Then you haven't been paying attention. In this very thread, I've discussed the purpose behind the strict constructionist philosophy. To call strict constructionism mindless adherence to arbitrary rules is to miss the point entirely.

[Dogface]

If rights do not exist absent a legal guarantee of them, then there is no point and no need to ever oppose any government that is denying any "right", since that "right" does not exist if a government denies it. Thus, it cannot be legitimately demanded nor defended, since it does not exist.

[minty green]

Originally posted by Dewey Cheatem Undhow
The doctrine I espouse is neither inflexible nor unyielding. Democracy itself is remarkably flexible.

Quite true. But that hardly excuses slavish devotion to the end product of democracy when the result is a great big middle finger to basic human rights. Representative democracy is not, by itself, the cure for all that ails society, as the founding fathers most certainly recognized. No slavish devotees of the legislature were those guys--hell, they set up an absolutely brilliant system where only 1/6th of the power of the federal government was in the hands of democratically elected representatives.

But no serious person says "what the fuck does that mean," and shrugs their shoulders in blithe acceptance.

Sure they did. "Due process" is anything but self-defining, a inkblot test of simple fairness and good government--yet they enthusiastically ratified that sucker, wrote it right into the Constitution.

Serious proponents of substantive due process at least attempt to construct an argument as to why it should mean more than fair procedures, and try to chart out the limitations of that theory.

And in fact, I've done so in the past, in multi-page threads you've participated in yourself. It didn't seem terribly germane to the subject of this thread, which is where we get all these notions in the first place.

You, on the other hand, just say "whatever, dude!" and embrace the power of the judiciary to de facto amend the constitution without any attempt to ascribe a principled basis for that decision. It is a purely ad hoc philosophy. Essentially, any judicial use of SPD where minty approves of the outcome is legitimate, and any other use is illegitimate.

Whereas you don't give a damn what the outcome of a case is, as long as the court slavishly dedicates itself to your preferred, narrow reading of the Constitution? Are there no ends in your world, only means? Me, I'm fairly serious about both, and recognize that you can't have one without the other.

Seriously. Is there any policy choice that cannot be undone under the substantive due process rationale?

Forget the SDP label; the real question is whether the Court, using whatever doctrine it wants, has the power to invalidate any policy choice it wants. The answer to that, of course, is yes--see Marbury.

Now, having established that the Court has that power, you have to ask whether, in fact, "any policy choice" is likely to be "undone" by the Court. As a matter of social, political, and legal reality--as opposed to Scalia-style wailing that the sky is falling--the answer is clearly no.

But laws are not invalidated for being wrong or immoral; they are invalidated for being unconstitutional, and I can see nothing in the constitution that forbids those laws.

I can: Due Process and Equal Protection. YMMV.

[minty green]

Originally posted by december
minty, weren't you the lawyer who taught me that the Preamble couldn't be used to justify decisions?

No. In fact, I've argued several times that the Constitution should be interpreted consistently with the Preamble. Perhaps you are thinking of the Declaration of Independence, which has no legal force or effect?

But, the point is, the Constitution doesn't say the judges or any other public servants can exceed their powers in order to make the country better.

So are you in fact claiming that the Supremes "exceeded their powers" with the sodomy decision? Or are you just arguing generally?

[december]

Originally posted by minty green
So are you in fact claiming that the Supremes "exceeded their powers" with the sodomy decision? Or are you just arguing generally?

The latter. The point is to explore what appears to be inconsistent thinking. Many Americans strongly support the SC going beyond the written laws and Consitution, but strongly oppose others in government who do the same thing. Here are some theories:

1. The SC's legally questionable decisions have been popular. Most of us care less about usurpation of power than about results.
2. Judges are presumed to have greater wisdom than others in government -- especially the SC.
3. We're wowed by the robes. People who dress like that can be trusted to make good policy. But, we wouldn't allow policy to be made by people who dress like bus drivers or garbage collectors.

[KellyM]

Dewey, as you are explaining strict constructionalism it seems very much that you believe that strict constructionalism holds that the process is more important than the result. And it is that belief that I find morally repugnant. It describes a philosophy which AD&D players will recognize as "lawful evil".

The argument that the Constitution was "democratically mandated" as a "contract for future generations" is hard to sustain. Less than 3% of those living in the United States at the time were permitted to vote on the question of whether to ratify the Constitution (voting in most States then being limited to white male landowners). A miniscule fraction of those living today in the United States are descendants of those voters. A substantial fraction -- perhaps a majority -- of our current citizenry is descended from people who never voted on the Constitution, nor formally assented to it through naturalization (having being born to noncitizen residents, many of whom were made residents without their consent). It is tenuous at best to argue that there is a legitimate democratic mandate from the current citizenry for the Constitution that derives from its original "democratic" adoption.

Nor is the Constitution a contract. (Some people do like to consider it to be a contract between the several states and the United States, but that theory died on April 9th, 1865.) It is a statement of principles, some more detailed than others but all intended to guide our lawmakers, both elected and unelected, as they make the law of our nation. Strict constructionalism ignores the general and focuses too sharply on the specific. It is the ignorance of the general terms, and the general tone, and the entire purpose of having a Constitution, that damns strict constructionalism.

[Qwertyasdfg]

I almost posted a similar thread a while ago, but I lost my nerve for some reason.

In any case, here's my opinion. A "right" is whatever the constitution says it is. In a state of nature everyone has the right to do everything, so we create governments to sort out which rights we should keep when we enter into society. While I agree that life, liberty and property should be rights, they are not so by default. Thus, whatever the Constitution says should be considered a right. For example (and this is just an example, lets please not hijack this thread), although I do not believe that the right to bear arms SHOULD be considered a right, I accept it as being one.

Now since the judicial system is an extension of our Federal and state constitutions, I would say that the findings of their Supreme Courts are also rights (such as privacy.) Furthermore, it just seems smart and practical to give the judicial system this power in order to fine tune our laws/rights/society.