Dewey, I have to differ with you on your post two above this one (I neglected to get the number).
I respect your idea that SDP is or can be a Frankenstein’s monster. But I believe strongly that your position that it is not “founded in the Constitution” and “constitutes judicial lawmaking” is merely your take on how it operates.
In other words, it’s a question of one’s philosophy of Constitutional jurisprudence, not a flat-out I’m-right-and-you’re-wrong question of the infamous Income-tax-is-illegal-because-of-Ohio-statehood-issues ilk.
Let’s start with the idea that the Fourteenth Amendment does in fact incorporate many of the provisions of the Bill of Rights by virtue of the “privileges and immunities” clause. I’ve never seen you disagree with this – the idea that the First Amendment prohibits Federal interference with free speech and the free exercise of religion, and the Fourteenth Amendment extends this prohibition to State interference, seems to be fairly valid jurisprudence all the way around.
Now, typically an American believes that he has a complexus of ill-defined “rights” to disparage which “the government” may not act. He does not get into the issues of explicit jurisprudence; he believes that a policeman has no inherent power to enter his home without his consent and without a judge’s authority. He believes he has the right to marry as he pleases (presuming it’s within the marriage laws of his state). He believes he has the right to travel and to relocate within the U.S. without getting governmental permission to do so. He believes he has the right to decide whether to attend a church or not, and to pick the church of his choice if he desires to do so. He may not extend these rights to others in some of the touchy cases that get argued – does that religious freedom extend to Muslims, for example, is one he may have a problem with, or, as has been argued at length, to gay marriages. But he thinks that he in general is a free man, entitled to do as he lists within the bounds of “what’s legal” and that there are limits on what can be declared illegal.
But notice that many of these rights are not explicitly spelled out. The cop is barred from illegal searches and seizures, from warrantless entry for such searches and seizures except in specified circumstances, but he is not explicitly barred by the Constitution from a non-search-and-seizure entry. No explicit clause gives him the right to marry, to travel, or to relocate; those are “rights” recognized by courts engaged in what many term “judicial activism.”
What Mtgman said above is what this ‘reasonable man’ thinks is the purpose of Constitutional rights – the right of the free man to do what he chooses, provided that he does not harm another or interfere with the rights of another. And that the courts are enabled to protect those rights.
The fact that he hasn’t spelled out his understanding of the limits of those rights is in his mind no limitation on them. He knows they’re there; he’s not necessarily prepared to grant their analogs to people who don’t think and behave as he does, but they’re valid rights to which he is entitled.
And right there is where the distinction springs up to slap us both in the face.
He doesn’t care a rodentiform rectum about “substantive due process” – he just knows that the courts are there to protect his rights, and he’s prepared, with ill grace, to allow them to protect the rights of others even when he doesn’t quite agree with them, so long as they don’t cross over his ideas of what’s right and wrong. This is why the issues regarding Roe are as hot as they are – while he’d object to regulation of what he can do with his body, he cannot see that that same rule applies to a pregnant woman, because of the presumed rights of the fetus.
But what he will not stand for is the idea that the state gives him rights – they’re his, and guaranteed by the Constitution against “big government” trying to deprive him of them. It’s why many conservatives object so strenuously to zoning laws – except when they benefit them; it interferes with their rights to deal with their property as they see fit.
And it’s in that idea that the common consent of Americans that we each have specified rights that may not be taken from us that the whole rule of law idea rests. That’s why one sees the sort of outrage from the left about Ashcroft that has been regularly posted here. To reduce that to a matter of proceduralism goes against the grain of our ‘reasonable man’ – he knows that there are substantive guarantees there that he can marry and travel as he chooses, and no matter that nobody saw fit to spell them out. He may not be prepared to grant gay people the right to marry, or suspected terrorists the right to travel, but he knows that he and other good people do have those rights, just with limitations of some sort – which he won’t spell out until he’s backed into a corner to do so.
So my argument here is not that SDP is valid constitutionally, but that it’s reasonable to argue that it can be – that it’s a school of thought that folks like myself and Minty can reasonably hold.
And the justification for that is in what “we the people” agreed would be our guide – the freedoms that we all take for granted, until the rubber hits the road and a definition of where they are limited and where they have free run needs to be made.
