To clarify, I posted the quote from Cal because he is an idiot not because I agree with him.
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that alone is not justification for further expansion of judicially-created extraconstitutional rights. Just because the courts have usurped power in the past is not justification for further judicial power grabs.]/quote]
How, precisely, would the court “usurp power” if they declared that the State of Texas has no power to burst into bedroom doors and arrest two adults for engaging in consensual sexual activity?
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*Originally posted by Blalron *
**
Because THERE IS NO PARTICULAR CONSTITUTIONAL RIGHT to engage in that particular kind of activity. And the courts only have the power to interpret existing law, not make new law.
Of course, this doesn’t apply to the “burst into” part; the Constitution does address the circumstances under which the state of Texas may burst into bedroom doors.
- Rick
Isn’t it a bit early to be making that call? After all, the court has yet to rule, and they are the final authority for determining what rights are or are not found within our Constitutional framework.
Actually, he’s quoting what’s usually taken as the summary of the decision in the case of Bowers v Hardwick, the one that held the Georgia sodomy law constitutional (as regards the U.S. constitution; it’s since been thrown out as violative of the Georgia state constitution). This was a 5-4 decision with Justice Lewis Powell as part of the majority; there are extensive and believable reports that he decided later (and commented on it) that his vote was in error. The problems with that case are too intricately complex to warrant hijacking this thread to go into – suffice it to say that a sane judge well below the Supreme Court should have thrown the original case out of court as a classic Fourth Amendment violation.
Then you gravely misunderstand my position. Rights are established by the people, either through the amendment process or through the legislative process. Unless the people have decided in some manner that a particular area is off-limits to legislation, then that area may be legislated by the government. To say otherwise is to deny the people the sacred right to self-govern.
The notions of substantive due process have been put to other ends. Around the turn of the century, it was used to prevent state legislation establishing minimum wages and maximum hour laws, on the grounds that this infringed upon the “freedom to contract.” While as a conservative I applaud the conclusion that such laws are counterproductive and foolish, I cannot countenance the striking of those laws by the federal judiciary. Like it or not, there is no “freedom to contract” in the federal constitution. The people have the right to enact laws which are counterproductive and foolish, so long as such laws do not violate some specific provision of the constitution. The ends do not justify the means. **
Poppycock. Writing a broad right to privacy into the constitution could be done with one sentence. **
No, we should start from a basis of respect for the decision of the people as expressed through their duly elected and only challenge that decision if it infringes on some area deemed off-limits by the text of the constitution. Starting from a “base of freedom” is meaningless drivel that can mean anything to anybody.
As noted by Bricker and Polycarp, the fourth amendment does indeed have quite a bit to say about when an officer can “burst into” a person’s home, and I suspect if this was being defended as an ordinary criminal matter rather than as an attempt to alter constitutional law the case would have been thrown out on the basis of an unconstitutional search.
As for the rest – it is an usurpation because it takes from the people the power to legislate in a subject area not forbidden by the constitution.
Great idea! How about adding:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
oh wait, it’s already in there.
Blaron, that language is fine if you’re talking about searches and seizures. But can you use that language to prove that women have a constitutional right to abortion?
As has been pointed out by others, there is no specific right to any sex at all in the constitution.
We do not get our rights from the constitution, dammit!! James Wilson of Pennsylvania who was both an important member of the Constitutional Convention and a signer of the Declaration of Independence opposed the idea of a Bill of Rights. His grounds were that the naming of specified rights would necessarily be incomplete and there was a danger that those not mentioned would be assumed not to exist. And it turns out he was right. That is what is happening.
The constitution guarantees certain rights and specifically says in Amenment IX that others that there are others not named that are retained by the states or the people.
Well if you want to go purely into Fourth Amendment grounds…
One could make an argument with abortion, similar to the line of reasoning in Griswold v. Connecticut regarding contraception. To enforce that law would require intrusion into the marital relationship, which would be inherently unreasonable.
To enforce anti-abortion laws would require an unreasonable intrusion into the doctor patient relationship, which is not constitutionally acceptable.
Blalron: as Bricker points out, the fourth amendment by its own terms only applies to searches and seizures. It has nothing to do with anything beyond that narrow topic area. It cannot be read to create anything like a broad right to privacy without some serious judicial bootstrapping (i.e., “emanations and penumbras”).
It would be quite easy to create such a broad right by amending the constitution. One sentence, something like “The right of privacy of any person shall not be unreasonably denied or abridged by the United States or by any State.” At least then when the judiciary defines the scope of that right, they’d have a textual provision to hang their hat on.
PS: That “unreasonable interference with the doctor-patient relationship” is absurd. Using that reasoning, any law preventing marijuana from being used for medically prescribed purposes would be unconstitutional.
And why is that bad?
Because the ends do not justify the means.
In view of the radical disconnect between several posters’ conceptualizations of what “the rights of Americans are” and how they connect to the Constitution, amply fostered by the choices of verbiage used here, I want to express my own conceptualization with why I think what I do, not as the definitive statement but as a point from which people can argue (and I’m quite confident that Dewey will see fit to shoot it out of the water within an hour of my hitting “submit post” ;)).
To start out with, IMHO the overwhelming majority of the Founding Fathers believed in the “natural rights” theory – that rights are not “created” or “given” (save by the Creator who endows us with them, from a Christian/Deist standpoint) – they just are. And in a “state of nature,” every man is equipped with every conceivable right.
Governments are equipped with powers to act in the despite of the individual, trammeling on these rights. This is neither good nor evil in and of itself. One’s right to shoot anyone who crosses him, for example, is one which badly needs restriction, since those who do so will inevitably cross someone else who will then be justified in shooting them.
There are, however, some basic human rights which a “good” government will not infringe upon. They are specified in the various Federal and state constitutions and amendments to them, sometimes in inordinate detail. For example, Eve, Ukulele Ike, Manny, and the other New York Dopers have the right to have the state’s Forest Preserve maintained in a “forever wild” state by the state government in trust for them.
These guarantees specify what rights are not subject to abridgement by the government – or, in some cases, under what circumstances the government may abridge them and under what restrictions it must act in doing so. For example, your right to drive a sound truck around town broadcasting your personal opinions on a given issue may be restricted to within the hours of 8:00 AM to 10:00 PM, but may not be restricted on the basis of what your opinions are.
It is in this context that I maintain that the Ninth is not a nullity, and that the Fourteenth guarantees other rights than those incorporated from Amendments I-VIII in consequence. For example, nobody ever thought that there would be a need for an amendment guaranteeing the right to travel, but unique circumstances involving a Wisconsin woman brought a case that forced recognition of that right to SCOTUS. Loving v Virginia defined a right to marry explicitly found nowhere in the Constitution, but rather obviously among those rights that Americans conceive themselves as having retained. Griswold v Connecticut likewise established a right to use contraception. All these rights must be found either in the Ninth or Fourteenth Amendments or in the “emanations and penumbras.” There is a constitutional right to privacy in the majority opinions of several Supreme Court cases, but its circumstances and delimitations are pretty nebulous at present – one can define specific circumstances where that right is protected, but not the limits on it, save that the right to commit sodomy in violation of state law is not among them (at present). It was intriguing that Herb Block saw in the Hardwick decision an assault by Burger and Rehnquist on the right to privacy in his cartoon on the decision – Mr. & Mrs. John Q. Public are sitting up in bed, while Burger swings a sledgehammer at the partially-demolished outside wall of their bedroom, and Rehnquist, grinning, wheels away a wheelbarrow full of brick that had been a part of that wall.
In sum, then, Americans are possessed of all rights that government has not seen fit to remove; there are some rights that it is explicitly restricted from removing; and there are other undefined rights that are sufficiently a part of the nature of “liberty” that government may likewise not restrict them, or may restrict them only in the pursuit of an overwhelmingly important government objective. (In perhaps my sole agreement with Mr. Justice Scalia, I would say that Lincoln’s suspension of habeas corpus was covered by that last clause.)
The problem is that determining what is or is not a “natural right” which hath been “endowed by the creator” is, at base, a policy choice – nothing more, nothing less. And I’m not particularly swayed by some of the founder’s belief in the existence of natural rights – the founders also believed leeching to be a valid medical treatment; that doesn’t make it so. I’m a fan of original intent, true, because it is a valuable means of safeguarding the democratic self-governance aspects of constitutional law; however, that view does not require attaching to the founders some mystical power to divine supernatural truth.
At base it’s all about policy choices. The first amendment is a policy choice: we the people decided that putting things like free speech beyond the reach of Congress was a good idea. That’s the only reason the “right” to free speech exists. Ain’t nothing supernatural about it.
Given that it’s all about policy choices, the question then arises: who decides? I’d suggest that in a government ostensibly of the people, by the people, and for the people that, jeepers, the people ought to decide. And before the chorus of “tyranny of the majority” starts to swell, let’s remember that the constitution and its amendments are in fact the work of the people – it was representative democracy that took free speech off the bargaining table, that elected to prevent unreasonable searches and seizures, and to protect all the other rights listed in that document.
Absent a restriction the people have previously agreed upon, the people are properly endowed with the power to legislate – the power to craft their government into whatever type they choose. Whether it’s laws restricting the spread of slavery, or instituting a mandatory minimum wage or maximum work hours, or setting forth restrictions on abortion’s availability, the people should be allowed to shape their government, for good or ill.
When the judiciary, in considering the constitutionality of legislation, exceeds the bounds of the restrictions the people have previously agreed upon, it usurps from the people a power rightfully in their possession. It effectively replaces the people’s policy choices with policy choices of their own. And that simply cannot be reconciled with notions of a government deriving its just power from the consent of the governed.
…and eight minutes to spare. 
The judiciary is part of our constitutional framework, along with life time job security for federal judges so they are insulated from being controlled by popular opinion.
The vague phrase “Due Process of Law” was put into the constitution, which practically screams for judicial interpretation. Same with “liberties” and “privlidges and immunities of citizens”, “cruel and unusual punishments”. At some point the courts have to use their discretion to determine what those phrases actually mean.
Most people are stupid.
As Professor John Hart Ely (no friend of strict constructionism, BTW) put it, “there is simply no getting around the fact that the word that follows ‘due’ is ‘process’” Only a willful disregard for the English language renders this clause as vague as you seem to think. It is basically a requirement for fair procedures – a fundamental right to be heard, as my Civ Pro prof would have put it. Granted, there is room for interpretation as to the sufficiency of those processes – the judiciary gets the final say on exactly how much “process” is “due.” But to transform that clause into a more sweeping requirement that laws be metaphysically fair and just does damage to both the English language and the text of the Constitution. **
Of course, I have never suggested that judges don’t need to interpret constitutional terms – of necessity, of course they do. I’m just arguing that they should not effectively write in new provisions wholesale. There is a categorical difference between determining if a given act is a “search” and saying the right to be free from unreasonable searches equates to a broad right to privacy.
I would also add that constitutional terms should be interpreted as to be consistent with other language contemporary to the addition of that term, which is why it’s ridiculous to suggest the 8th amendment bans the death penalty – the 5th amendment clearly countenances it. **
And this, laid bare, is the crux of your argument: a fundamental hostility to democratic self-governance. To wit: you like democracy as long as you agree with the outcome; otherwise, you have no problem with imposing your will by any means necessary.
The constitution says what the Supreme Court says it says, and they’ve been saying it means substantive due process as well as procedural due process since the 1850s.
I wish to “impose my will” only insofar as it is neccesary to keep the state from unfairly imposing its will upon me.