Re: Judicial Activism
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I don't disagree with the notion of a "Right to Privacy" and I think that the founder had something like that in mind as well.
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You think the Founders had something like that in mind? Where did you get that idea? Not once does the word privacy appear in the Constitution.
I'm not trying to be confrontational - I'm trying to demonstrate that much of what constitutes jurisprudence is intepretation.
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My whole problem is that it is a tricky business to start reinterpreting the language to expand the right of something.
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I agree it's certainly a tricky business; all the more reason to give a high level of concern the quality of the judiciary, particularly SCOTUS.
'Reinterpreting' is often the business of the court; as someone mentioned, Brown v. Board of Education is a good example of how and why courts are often (and ought to be) in the business of 'reinterpreting' from time to time. That's their duty, even though they attempt to remain faithful in observing stare decisis and jurisprudence constante whenever possible (although it should also be noted that many originalists, including Scalia, are strong critics of stare decisis; and it should also be mentioned neither Griswold nor Roe constituted a 'reinterpretation' of the Constitution - critics of Griswold and Roe argue that it removed what ought to be the legislature's legitimate jurisdiction; in other words, critics of Griswold and Roe constituted a wrong-headed 'interpretation', not an illegitimate 'reinterpretation'; this may seem like a small difference, but it's not - as what I'm trying to demonstrate here is that jurisprudence is the business of interpretation, and it's where our differences lie; the right attempts to paint the picture that conservative justices follow 'the letter of the law' while liberal justices 'invent, legislate from the bench, and are judicially active'; let's be honest instead: Everyone's interpreting - and the right disagrees with some of SCOTUS's past interpretations, and would rather have those interpretations replaced with their own, more-agreeable-to-their-point-of-view interpretations. Fair enough. But that's the game, and it's disingenuous to claim the right isn't playing too).
In other words, if you agree with Scalia, than you ought to favor a judicial philosophy that embraces 'reinterpretation', as this is the only way Roe could ever be overturned - certainly you don't find 'reinterpretation' to be so abhorrant when it comes to overturning Roe, correct? I think you'd be more than happy to reinterpret Roe. Shout me down if I'm wrong.
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The "Right to an abortion" is an extension of the right to privacy which is an extention of several other clauses. Now, With the Griswold case it was a "good" move but it opens the door for reinterpreting to include the "Right to an Abortion". I think there should be a right to privacy and I think, just like Roberts believes, that there are "general" provisions that make up the right to privacy. I do not see those general provision to include "The Right to an Abortion". It was the time that they believed that it ought to apply so they invented.
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Well, SCOTUS did see the right to privacy extending to the right to have an abortion in Roe. Just because you and Chief Justice Roberts disagree (although I don't think it's at all clear what Roberts believes) doesn't mean the Burger Court 'invented' the right; again, what stops me from claiming Justice Rehnquist 'invented' a right to expressive association? It's nowhere explicitly in the Constitution.
'Inventing laws', 'judicial activism', 'legislating from the bench' are all to subjective judgments that are = 'I don't like the outcome'.
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I don't understand your non sequitur on the Air Force. Air Force is just an equipmental division from the Army. You can just reorg the Air Force under the army and it would not be in violation of the Constitution. So I don't understand the bearing.
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1) The Air Force is part of the United States Armed Forces; it's not an 'equipmental divsion of the Army', which is a separate but equal branch of the Armed Forces - unless I'm severly confused about our military.
2) Surely, the United States could reorganize the Armed Forces so that it fully complies with the explicit wording of the Constitution; but clearly we have no interest in that, as most rational people can interpret the Constitution and say: while it doesn't explicitly grant the right to create the Air Force (wholly separate from the Army and the Navy), we can judge that the government has such a power, and has it legitimately. The only reason no one challenges such an interpretation is because it's relatively benign and not controversial - everyone agrees with it.
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