Leo: But then it no longer makes sense as an identifying term of a judicial philosophy, since everyone agrees that there are instances where a law must be struck down as unconstitutional, and there are instances where it should be upheld. The real issue is how one defines or delimits the instances when laws should be overturned.
Nathan: << For most of this nation's history until the New Deal broke the power of the Supreme Court, it was progressives who denounced the rightwing judicial activism of the courts and called for judicial restraint. Under the Warren Court, however, progressives became addicted to the deus ex machina of the Supreme Court saving them from the democratic fights they might lose on occasion. Some of the decisions on basic speech freedoms and racial equality were necessary because racist structures were subverting democracy in a way that the normal electoral realm could not correct, but others were just political preferences of progressive Justices overriding other views decided in democratic forum. >>
Leo: One can have an interesting political debate about the consequences of establishing important democratic rights through judicial review. Without a doubt, a democratic right established through majority rule is far more secure. But if we waited for majority rule alone to end de facto segregation and the denial of voting rights in the Jim Crow South, we would probably still be waiting.
The experience of the Warren Court shows precisely that there is no necessary political articulation of the judicial approach you describe. And you yourself want to uphold the Warren Court approach with respect to the Bill of Rights and the 14th Amendment which, I might point out, was basically the main thrust of the Warren Court. So far as I can see, the only specific case for an overreaching judicial activism you have made regards Roe v. Wade, which was not even a Warren Court case.
Nathan: << It is exactly the basis of unenumerated rights in rightwing 19th century jurisprudence that made many progresives like Hugo Black denounce the Court's citing of such precedents, the same ones that struck down minimum wage laws, child labor laws and almost every other attempt at progressive legislation in the late 19th and early 20th century. >>
Leo: But the Warren Court and the Burger Court [in Roe v. Wade] clearly eschewed the substantive due process and natural law approaches to identifying unenumerated rights, which speaks directly to these earlier laissez-faire capitalism precedents. And remember that Hugo Black argued for incorporating [applying to state and local governments, and not just the federal government] the entire Bill of Rights, not just the fundamental rights, as Cordozo and Frankfurter advocated, so he was far from consistent on this question. Your position sounds much more like the Frankfurter/ Cardozo than the Black position.
Nathan: << That [freedom of association] is not an unenumerated right. That is derived directly from the First Amendment. The Court recognized that a right to speak without the right to speak to someone is an empty right. >>
Leo: Lawyers sure are shifty with their definitions.{-; Clearly, there is no text in the Bill of Rights or the Constitution that explicitly guarantees freedom of association. No matter how you, or the Court, spins that, it seems to me that it is thus clearly an unenumerated right. Now, it certainly is implicit in the First Amendment's protections of freedom of speech and assembly, but so is the right to privacy clearly implicit in the fourth amendent's protection against unreasonable searches and seizures, the fifth amendment's protection against self-incrimination and the fifth and fourteenth amendments' right to due process. You want to make a distinction without a difference here, to deny the full reach of your position in opposition to recognizing unenumerated rights.
Nathan: << Sort of - its a right that polygamists, gays and anyone seen as deviant can be denied at will. Its a rather shaky right that has been used more to support certain other rights, such as against racism in the decisions striking down misagenation laws, but has little real content. And frankly has little content that the democratic process has not fully protected, since heterosexual married couples are not the most powerless voting group in society. >>
Leo: I have managed to be part of every group denied the right to marry, having been involved in gay relationships and now in an interracial relationship, and I must say that you seem just a little too glib in announcing that the rights would be so easily protected by majority rule. Bloody Alabama just barely managed, by popular referendum in the year 2001 forty years after the Supreme Court declared anti-miscegnation laws unconstitutional in Loving v. Virginia, to take out of its state Constitution a prohibition of interracial marriage. And I don't know where you have been during the debate over gay marriage, but the debate I have seen makes it fairly clear that this is not about to be recognized by the majority in most states for many years to come.
Nathan: << Explicitly [the right to travel] in the constitution based on the privileges and immunities clause which guarantees that states must treat citizens from other states equally. >>
Not in my book. The text reads: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." As I read it, the right to travel is at best an inference of the fact that Pennsylvania must treat me, as a resident of New York and citizen of the US, as it would treat its own citizens. But it is hardly an explicit, enumerated right in the way my due process of law is, and if Pennsylvania decided to deny its own residents the right to travel [an implausible hypothetical, I concede], it could do the same to me.
Nathan: << Yes - and I agree with Justin that this [the right to die] is better decided in the democratic realm. >>
Leo: Perhaps. The constitutional power to recognize unenumerated rights does not have to be exercised in each and every instance.
Nathan: << The right to live where one pleases [is] not really recognized - exclusionary zoning and other methods have been constitutionally validated to deny people the right to live with too many people in the same space >>.
Leo: It is not an unlimited right [what right is?], but it is a recognized unenumerated right nonetheless. Witness the striking down of "restrictive covenants" for communities.
Nathan: << right to consensual sexual relations with another adult is absolutely not [is not an unenumerated right]. Bowers v. Hardwick made clear that consensual sexual relations is not a constitutional right; heterosexuals largely have a right to privacy based on marital relations and the need for procreation - one reason I find the "right to marry" to largely be a reactionary right as applied by the Court. >>
Leo: As I noted in my original posting, this is not the case in New York State. In People v. Onofre, the Court of Appeals [the state's highest court] used the doctrine of 'new judicial federalism' promulgated by the Rehnquist court to strike down the NY State sodomy law as a violation of an unenumerated right to privacy, accepting the same argument that the Supremes rejected in Bowers v. Hardwick, but with reference to the NY State Constitution. Since 'new judicial federalism' treats the rights the Court recognizes in the federal constitution as a floor, and not a ceiling, of protection, it is quite possible to do this. The NY Court of Appeals has done the same thing with respect to the exclusionary rule of the protection against unreasonable searches and seizures, refusing to accept "good faith" exceptions. And in any case, isn't the problem that the Court decided Bowers v. Hardwick wrong, violating its own precedents?
Nathan: << As noted above, not really. The bastion against the authoritarian state is the Bill of Rights and if followed to the letter - ie. Congress shall make NO law regarding speech - it would be plenty. In fact, the doctrine of unenumerated rights encourages the Courts to "read" in exceptions to the explicit text of the Constitution. >>
Leo: The Bill of Rights and the 14th Amendment are clearly central here. But if not for the doctrine of incorporation coming out of the 14th Amendment, based on a very broad and "activist" interpreptation of its due process clause, the Bill of Rights would not apply to the states and local governments, and would thus be a dead letter. I think that your argument for a jurisprudence of "restraint" has great difficulty separating itself from all of the Court decisions you laud.
Nathan: << Yes. [In answer to the charge that his position would leave the problem of what the ninth amendment actually does when it protects "unenumerated" rights. For all of the talk of relying upon the actual text of the Constitution, those who want the court to foreclose the option of identifying "unenumerated" rights, are, in effect, demanding that it ignore the ninth amendment, treating it as a dead letter.] There is no reason to give an unelected Court the right to impose their beliefs on the rest of society without any democratic accountability... Finding new unenumerated rights is undemocratic in a way that no democratic society should accept from unelected judges.]
Leo: So we must faithfully follow the text of the Constitution... except for the Ninth Amendment. Doesn't sound like a consistent doctrine of jurisprudence to me.
Leo Casey United Federation of Teachers 260 Park Avenue South New York, New York 10010-7272 (212-598-6869)
Power concedes nothing without a demand. It never has, and it never will. If there is no struggle, there is no progress. Those who profess to favor freedom, and yet deprecate agitation are men who want crops without plowing the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its waters. -- Frederick Douglass -- -------------- next part -------------- An HTML attachment was scrubbed... URL: <../attachments/20010515/e5532bae/attachment.htm>