Tuesday, July 05, 2005

What a strict constitutional approach brings...

We'll all be hearing a lot about activists and constuctionists and liberal and conservative justices. What it all comes down to is whether or not people have any rights not specifically laid out in the Constitution, and whether our society should evolve as needs dictate or we should consider the Founders to have had vast psychic powers that will guide us for centuries.

I'm not being entirely fair. I have some sympathies for people who say that they don't want judges "legislating from the bench." Judges aren't elected, they can't be tossed out of office and there is potential for tyranny.

On the other hand, things aren't right just because they're popular. Slavery was once really popular. Half the country argued that it should be up to the states to decide whether or not to have it. I hear that a lot of people died over the question. But I think we can all agree that even if 99% of the population wanted slavery, it'd still be wrong. In fact, I know we agree with that. We certainly apply that standard to Germany, a country that we demanded continual pennance from, generations after its World War II crimes. Sometimes, the court has to step in and say, "Sorry... that law or practice is wrong and you can't do it if we're to have a functioning Democracy."

Some will argue that the court should only do that in cases where the Constitution specifically spells out a right. A state can't force somebody to incriminate themselves in testimony, for example, because the 5th ammendment says it's not a state right. Anything else not laidm out so clearly is a state right since the Constitution cedes authority to the people, through their local governments.

For a look at what this leads to, I'll excerpt from an absurd column in today's Wall Street Journal, by Robert H. Bork. Bork believes that court it creating rights out of thin air. His criticisms of other justices prove not only that we're lucky he never made it to the court, but the absurdity of the strict coonservative approach to Supreme Court Decisions.

First, he criticizes former Justice Harry Blackmun for writing, in an opinion, that he asserts a "Moral fact that a person belongs to himself and not others or to society as a whole." Think about that. This drives Bork crazy. But think about yourself. Who do you belong to? I might have obligations to society, I definitely owe it a lot, but I don't belong to it as if I'm a piece of property and I can't think of a thoughtful person who would argue that I do. But, Bork doesn't see it in the Constitution so it must not be true. I must belong to society in the same way that my DVD player belongs to me.

Bork's next target is current Justice Anthony Kennedy. Kennedy said, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life."

Think about Kennedy's words. Can you honestly disagree? Sure, there's no metaphysical freedom ammendment in the Constitution, but do we need one to justify something so self-evident as the freedom to ponder, and come to conclusions about "the mystery of human life" on our own? Bork thinks so.

Bork is really angry because these opinions led to the creation of, what he calls, "a constitutional right to homosexual sodomy." All right, so Bork's an angry, bitter, old prude. But he's one who apparently thinks that states have the right to criminalize private bedroom behavior. No, it's worse than that. He also doesn't think that individuals have the right to metaphysical meanderings.

Bork's complaints about the court are many. He writes as a defender of the constitution, but what he's trying to do is turn society back. His litany of complains against the court are all social, saying that the court has "protected as free speech the basest of pornography," and "destroyed taboos about vile language in public," "mounted a campaign to normalize homosexuality..." You see where Bork stands on all of this. He's no defender of the Constitution, he's an enemy to individual freedom and a Bork-style appointee will be the same way. It's the ones who'll talk the most about adherence to the letter of the Constitution who will do the most the limit individual freedom, right down to your rights to "determine one's own concept of existence."

P.S. Bork's a moron.

3 Comments:

At 4:55 PM , Blogger hooey said...

Our best hope is the Senate. If the Democrat's stick to their principles and hold fast; filibuster, there will be certain RepublIcan't senators who will atempt to compromise just to make the filibuster go away. This can open the door for a progressive justce. Or at least one who is not as far right as Shrub wuold like.

 
At 10:11 PM , Blogger Mike M. said...

Howie, I hope you're right. Also, welcome to Thosethingswesay and thank you for reading and responding. It means a lot to me.

 
At 11:20 PM , Anonymous Jon said...

I'm also not aware of any part of the Constitution, as originally written or as amended, that stipulates the right of a citizen, foreign resident, or visitor to breathe, eat, or void their bowels. So if the anti-respiratory wing of the Dumbass Party got together with the anti-digestive wing of the Retard Party and passed a bill forbidding Texans to breathe, eat, or crap, would a strict constructionist say, "I don't see a violation of any elaborated right here"? Or should Texans maybe hope for some reasoned argument as to why other rights enumerated in the Constitution might have some logical connection to breathing et al?

I have to disagree with your contention that Bork is a "moron". He's clearly a dipshit.

 

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