[mosta]

this government is a work in progress. it was from the first step a product of experiment and compromise. lots of things we do weren't planned or anticipated, and couldn't have been, and therefore aren't in the constitution. judicial review is not in teh constitution. but I think it's pretty much necessary unavoidable. should it be in an amendment? maybe. certainly couldn't be a bad idea. fundamental rights theory undertaken under the rubric of the 14th amd ("substantive") due process isn't in the constitution either. that doesn't mean that the government wasn't supposed to be in the business of rights. one of the major positions in the drafting debates was that no rights should be specified in the constitution because to specify could be interpreted as restricting. the court's jurisprudence is entirely in keeping with that natural rights position. textually, the entire doctrine of substantive due process is a bit of a stretch, granted, but I didn't ever get why they didn't want to avail themselves of the 9th amd. whatever. even if they're not using it, the 9th amd clears my conscience with regard to this usurpation. the main question to me is whether the judiciary is an appropriate vehicle for the articulation and protection of generalized libertarian rights. I think it is. I think the limits of morality, the framework, can't come from the political process. politics is always interest driven and parochial. note that the clash between the court's rights intiatives (or usurpation) and parochial traditionalism is not merely a clash of one particularism versus another (one mere bias versus another) like sunni--shiite, jew--muslim, anti-[censored]--anti-hetero, vanilla--chocolate. it's not just a matter of one person's bias or another's, not just a swing of the pendulum, maybe. the clash is much more profound, and revolutionary in scope. and it's not arbitrary. the court has defined a universalistic egalitarian value framework wiht presumptions of individual liberty and equal treatment (and strict scrutiny analysis). in a way it's both less and more of an imposition than one other particularistic morality. it's less because it's only negative--only telling government when not to impose on individuals. it's more because it can wipe out any particularism. I don't think there is any middle ground. there's no "impartial" position. the project continues or it does not. and I'm not sure anyone else could do it than the court.