Judicial Activism

[etgryphon]

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You don't think that it is suspicious that this "Right" supposedly clearly evident in the Constitution did not exist for nearly 200 years?

It is very clearly judicial activism. They thought it "ought" to be in the Constituiton so they invented it.

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The Court didn't claim to 'invent' nor 'find' the right to privacy (which extends to the right to have an abortion). Nor did they claim 'the right isn't there, but it ought to be - so now it exists'.

They argued that right has always been there (so says Justice Douglas in Griswold v. Connecticut, which formed the basis of Roe ):

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

I know, I know - conservatives don't like the words penumbra and emanate. They sound kind of funny, so, I understand. But that isn't SCOTUS claiming "Hey, look at this funny [censored] we just made up" - despite whatever nonsense you might hear from the right. It's the legitimate business of jurisprudence; something everyone on all sides is engaged in.

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Or put another way: the right to an Air Force isn't in the Constitution, nor did it exist in this country's first 150 years.

You can survey Article I of the Constitution for yourself, if you don't believe me:

Article I, Secion VIII:

<font color="blue">"Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." </font>


I'm willing to wager even Robert Bork would uphold the Constitutional legitimacy of the Air Force. How could he do such a thing? By interpreting, of course. You say to-mat-to, I say to-mat-ta. You say 'judicial activism', I say 'legitimate jurisprudence'.

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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. My whole problem is that it is a tricky business to start reinterpreting the language to expand the right of something. 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.

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.

-Gryph

[etgryphon]

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You have a right to equal treatment under the equal protection clause of the constitution. In other words, in Brown they argued that seperate schools didn't meet the already agreed upon amendment ("seperate is inherintly unequal"), not that they wanted to change the meaning of the amendment itself.

Once again, I'm going on second hand info here.

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No that is how I understand it. No one can argue that using the same resources(schools) is unequal. It overturned an extra-Constitutional provision of "seperate but equal" which in practice was unequal.

The tricky part was the courts mandating the busing to force integration. That is the only slippery slope. Now, they are legislating a solution.

-Gryph

[MMMMMM]

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I think it requires an awful lot of mind-reading


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Weird, this is the exact thought that popped into my head when I read MMMMMM's post.

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I agree that it would require a lot of mind-reading to identify specific instances of occurrence. That however is a far cry from the claim that it doesn't exist at all except in the eye of the beholder.

[DVaut1]

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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.