Can’t argue with that.
Where do you get that from, and who gets to define what the “blessings of liberty” are, outside of the constitution.
BTW, the constitution gives the gov’t the authority to regulate interstate commerce, not just “commerce”, nes pas?
in the various states, there are no limits other than what their constitutions and what the federal government set as limits. certainly one must read the constitution and infer in many cases whether a given right enumerated in the constitution applies to something that could not have been imagined by the writers (the search cases, for example). the words are not meaningless, and one must interpret the text and determine what the words mean and how they apply to a given case. but stretching it too far invites abuse of the words, in my opinion, and i believe history has borne this out.
as far as the ninth amendment, i can’t see it adding anything substantive to constitutional law. am i not alone in that, or is it just a good thing i’m not a judge?
[aside]while this is all being discussed, could anyone tell me where the right to privacy is actually inferred from the constitution? i expect you not to answer with “it can’t be inferred”, as this is a factual question: where have those who found that right found it in the constitution?[/aside]
That question will gore Dewey’s ox
The Right to Privacy is not specifically mentioned but inferred by the Court in several places.
From Roe
There are no limits to the ability of the supermajority to oppress, since they may always amend the Constitution. There are limits to the ability of the majority of the moment to oppress, since they are constrained by the developed consensus of what the Constitution protects, as well as the literal text of the Constitution.
The Ninth Amendment’s purpose is to state that fundamental rights may exist that are not expressly enumerated in the Constitution, and refute the argument that a failure to expressly mention a right does not give rise to the inference that it does not exist. But neither does it permit a wholesale addition of unrelated, unmentioned rights.
Where else have I failed to answer your questions?
Homebrew, what you consistently fail to grasp is that your idea of how to interpret the Constitution boils down to the benign dictator approach: judges should read the Constitution to require what’s right, what’s proper, what’s consistent with liberty for each person. The problem with that power is zero – as long as you, or some other benign person, are exercising it. But when you start to disagree with the benign dictator, he suddenly seems much less benign. You are willing to excoriate the Court for Bush v. Gore, even though they are using YOUR rules - their judgement, yes, but your rules. They did what seemed right to them, even if based on shaky legal reasoning. That’s exactly what you urge – the only difference is that you want them to do what YOU think is right. But you are not the boss of me. No one voted for you. You can’t impose your idea of what constitutes a balance between liberty and orderly society.
The nine justices can. But I believe that gives them too much power. They are not elected. They don’t represent the will of the people.
What does “self-governance” mean to you?
I don’t have much to add to what Bricker has written, but since the ninth has (yet again) come up, here’s a bunch of threads where we beat that horse into several afterlives (this topic comes up so frequently that I have the following post saved in a text file):
Here we go again. The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights.
Even libbies with law degrees like minty green understand this.
We’ve discussed this point many times. Among other places, it’s buried in these threads:
Rights? What’s a Right?
Is Scalia Nuts?
Supreme Court hears challenge to Texas Sodomy Ban
Conservative dopers vs. gay sex decision
Democrats oppose Hispanic judge: “he’s too competent!”
Strict constructionists: How about adding a constitutional “right to privacy”
A moment of your time, please, Justice Scalia
And not a 9th thread, but just for fun: Dewey! Minty! Come a runnin’!!
I didn’t say you agreed with it. I said you gave Scalia a pass on the matter. A pass is not an endorsement, it is failure to deliver a deserved criticism. This is precisely what you did. Scalia’s integrity had been questioned, with regards to his use of equal protection in Bush v. Gore, and you said nothing critical of him, and indeed, came to his defense:
You didn’t directly endorse Scalia’s position in Bush v. Gore, but in context, you are defending him nonetheless.
Well, that’s okay. From my own perspective, I see the decision that there was something clearly amiss with respect to equal protection of voters as quite reasonable. Purely as a result of legal ignorance, I don’t understand how Bush had standing to protest the violation of the voters’ equal protection rights, but that’s really neither here nor there. What boggles my mind is that the remedy guarantees that the equal protection rights of the voters would be violated, but that’s in no small part a reaction based on national differences. As a Canadian, living in a country where there are laws about electoral uniformity, it blows me away that you folks put up with a myriad of non-standardized ballot forms and voting techniques which basically guarantee that some votes count more than others. I spose that’s really neither here nor there with regards to this thread, though, either.
Oddly enough, I concluded from this statement that you thought that the equal protection clause does nothing more than proscribe racial discrimination in government. Silly me. (You make other statements to similar effect in the same thread, but upon rereading, I see that you were more careful with caveats in the others. I didn’t, however, see any straightforward statement of the position you state here, i.e., broader coverage at lower scrutiny.)
Kindly point out where in my post I put words into your mouth.
You know, Dewey, sometimes you infuriate me, and right now is one of those times. To really do justice to how angry this post makes me, I’d have to take you to the Pit. However, I don’t really see the point in doing so. If you think I’ve put words into your mouth, you need to take a long, hard look at what you’re writing, and stop assuming that you’re entitled to make arguments based on broad implication and the general thrust of points, while only being subject to criticism based on strict definitions and narrow interpretations of what you say. That may be a valuable tactic in the practice of law, I wouldn’t know, but in an open, honest debate it’s barely a step above intellectual dishonesty.
A-ha! Well, not so much. But it does seem there’s finally an issue on which you and Dewey are not in agreement.
I know that Dewey will argue that there are no differences in your positions. But there is a subtle yet significant difference. Your position acknowledges that there are rights that aren’t explicit that would be protected by the Constitution. Dewey’s position states that other rights can be granted by other law, but they don’t exist otherwise.
It means that I am free to do as I wish without undue interference by the Majority wielding the hammer of government. Self to me means individual. It seems to me that you take it to mean “the people” as a group, not as individuals.
Homebrew:
I’m curious about your idea concerning what limits should be placed on the actions of the majority. Suppose that Congress and the states drafted and ratified an amendment to the constitution that explicitly banned abortions. Do you think that the SCotUS should have some authority to override that action?
I’ve consistently stated in this thread that Bush v. Gore is a highly arguable decision. I’ve even clarified that I think it only justifiable on stare decisis grounds. If I’m “giving a pass” on Scalia on that opinion, then I must also be “giving a pass” to every other opinion ever handed down that depends on stare decisis for its validity. You’ll forgive me if I find that less than damning.
Perhaps you missed all the posts where I discussed the rational basis test. What did you think I was referring to, exactly?
Your post implied rather heavily that I pick and choose my view of equal protection based on what particular is ox is being gored at the time.
Whatever you say, hoss. Let me know when you decide to quit leveling thinly-veiled accusations of hypocrisy and start simply asking for clarification in whatever percieved inconsistecies you see in my position – that is, when you decide to stop trying to provoke me. Until then, you’ll forgive me if I think thou dost protest too much.
Rights do not exist without a corresponding remedy. A proffered right without a remedy is a wish, not a right.
Proving a right exists apart from the mechanisms that honor and protect that right is like proving God exists. Can’t be done.
Prior to the division’s being handed down, we were discussing it here in some thread or other, and I (apparently mis-)understood you to imply that the Texas law was strikeable on equal protection grounds. Hence my (erroneous) assumption that you would likely write on the O’Connor thesis.
Ahhhhhhhhhhhh. I remember what you’re referring to. In that thread, I was offering predictions, not my own take on the constitution, though I can certainly see how it’d be easy to conflate the two. My appologies.
I agree with you and Hamilton. However, there’s one small distinction that needs to be made in both these posts which tends to make them slightly inaccurate. The Constitution neither creates nor grants rights; it guarantees them. Accordingly, your right to, e.g., chew gum in the privacy of your own home does not need to be guaranteed because there is no anti-gum-chewing lobby (aside from the ADA) running around trying to prohibit peaceful citizens from chewing gum in private. It exists, but no law defining it is necessary.
Certain fundamental rights are guaranteed explicitly in the Constitution. Others are inferred as direct lemmas or consequences of the explicit rights. Still others are inferred by the natural law doctrine, which many legal scholars reject, despite its hoary and distinguished origins, and read into abstract guarantees like the Ninth and the references to privileges and immunities and liberty in the Fourteenth (avoiding the obnoxious question of what substantive due process means and when if ever it may be properly applied).
Dewey has never said that rights not enumerated in the Constitution, state constitutions, or statutes don’t exist – he’s said they are not guaranteed. An assertion of them in a court case would fall flat because no evidence of the cognizant legislative bodies ever having guaranteed them is extant. But they may well exist.
A parallel for you: gay couples who have pledged their troth to each other are unquestionably married, as the Common Law understood marriages to be created. But no state is willing to grant legal recognition to those objectively valid marriages as yet. Are the marriages “real”? Certainly. Are they legally enforceable covenants? Not on your tintype, pending further jurisprudential developments.
In illustration of my “lemma and consequence” issue, allow me to exemplify with two First Amendment illustrations. One is an old standby for me: A law that guarantees your freedom of speech to advocate for gay rights, but restricts you from doing so when anyone can hear you, is strikeable – despite its guaranteeing your right to speak. Freedom of speech infers a freedom to be heard by a willing listener. The other is something that even some lawyers talk as though it were explicit in the First Amendment: the so-called “freedom of association” that was used in the Dale case. The First Amendment guarantees explicitly only the right to freely assemble for one purpose: to petition the government for a redress of grievances. I have not seen Boy Scouts gathering specifically to lodge protests against the government by petition; they’re usually engaged in horseplay, camping out, community service, or some other worthwhile thing for boys to do. But not circulating petitions. Yet we infer from the freedom to peacably assemble for that purpose, and the guarantee to freely exercise one’s religion, that one has the freedom to assemble with like-minded persons for any other lawful purpose. Nowhere is that specified, but it’s a logical consequence of the enumerated rights.
I am not arguing for or against a specific philosophy of constitutional interpretation here, simply illustrating that “strict construction” is not as strict as it may seem.
There was nothing thinly veiled about my accusation of hypocrisy. It was quite blatant. I see you are attempting to justify your position by an appeal to stare decisis. Well, my friend, if you have a principled means of determining when you think stare decisis should have weight, and when it should not, outside of the “Dewey agrees with the result” principle, I haven’t been able to divine what it is. I suppose I could give you the benefit of the doubt, but I’ve never noticed you giving any of my suggestions any benefit of the doubt. Whenever I’ve left anything remotely open to interpretation, you’ve assumed the worst and held my feet to the fire. I have no idea why you think I should adopt a more charitable stance.
Hoss?
Then you simply haven’t been paying attention. The decision to defer to stare decisis, while a judgment call, is not derived from like or dislike of the result. It is derived from the degree to which a particular line of precedents have ingrained themselves into constitutional jurisprudence. The clearest example I can think of is the notion of full incorporation of the Bill of Rights to the states – regardless of whether I like or dislike the result in any particular case, and regardless of my disbelief in the notion that full incorporation as something the drafters of the fourteenth amendment were trying to accomplish, I nonetheless honor that theory because to do otherwise would be to pull the rug out of nearly a century of jurisprudence and to radically alter the expectations of present and future litigants. I’ve stated this numerous times in various threads. That you continually miss it is to your great discredit.
As is the rest of your post.
You’ve created a really beautiful strawman here, Shodan. I don’t know where we have established that the Constitution says only what judges want it to say. Judges always have to interpret the Constitution. What we are arguing about is the method of interpretation.
By the way, do you have an example where the Constitution was amended and then the judges ignored the clear expression of the amendment?
Well, maybe it is because there is no such thing as “the Constitution says what it says.” It is always open for interpretation. The difference is really between those who claim to have a more objective interpretation…which they are then free to abandon as convenient (e.g., in order to get the President they want appointed).
I’m sorry, but I cannot see any way to square this with your views on privacy rights and substantive due process.
Just out of curiosity, given your claim that this is “arguably the most liberal court in the history of the country”, can you provide some arguments or views to support this claim. (I am not saying I think it’s wrong…I just don’t know. I always thought the Warren Court had that distinction.) Also, given that 3 justices (Roberts, Murphy, and Jackson) signed on to a sharply worded dissent in Korematsu (see here…What were the political leanings of these justices relative to the ones in the majority?
I frankly don’t see the conflict.
Stare decisis is simply the principle that we can’t go back and revisit every aspect of every constitutional question tabula rasa every time they arise. There is a need for stability in the law. Sometimes that means accepting even a manifestly wrong line of opinions, if that line of opinions have become deeply entwined into our constitutional scheme. It’s kind of like 18th century doctors leaving the bullet in a victim because surgical removal would be too risky – you’d rather the guy have not been shot in the first place, but the cure would be worse than the injury.
I don’t think the privacy cases have achieved that status. In particular, I think there has consistently been the sense post-Roe on both the pro-life and pro-choice side that the finding of an abortion right hangs by a slender thread and could be reversed at any time. Those opinions simply haven’t become as reflexively ingrained into constitutional law as, say, the notion of full incorporation.
I also think that when we rely on stare decisis, we’re obligated to honor those holdings and go no further. You shouldn’t bootstrap further rights extensions onto a manifestly wrong but deeply ingrained prior rights extension. We can debate and dicker over whether Bush v. Gore merely repeats or actually extends the principles in the prior equal protection in voting cases; again, I think the opinion highly debatable. But the privacy cases are clearly an example of new rights being bootstrapped repeatedly onto old ones.
Sure we have.
At least, you have, when you posted;
So it is not a strawman at all; it is the very essence of your position.
“The Constitution doesn’t say what it says” is the linchpin of judicial activism. All that is necessary to establish whatever a given judge wishes to establish is to “interpret” what the Constitution says to mean whatever you want it to mean. Freedom is slavery, black is white, ignorance is strength.
Sure, Roe v. Wade vs. the Tenth Amendment, or any number of gun-control laws vs. the Second Amendment.
Ignoring the Tenth Amendment is easily accomplished by interpreting “the states, or the people” to mean “the federal government and the courts”. Ignoring the Second is accomplished by interpreting “the people” to mean “the government”, and “shall not” as “can be”.
Actually the difference is between those who believe in limited government, and those who do not. Or, more specifically, between those who believe the Constitution has any meaning, and those who change the meaning to fit the needs of the liberal minority of the moment.
Regards,
Shodan