Judicial Review, Judicial Restraint, Judicial Activism and Rights

Ian Murray seamus2001 at home.com
Tue May 15 15:01:39 PDT 2001

> You'll never catch me using the term "judicial activist" or
> restraint," except for rhetorical purposes. I agree with Nathan that
> terms are meaningless. I said I was judicially "conservative," which
> in my terms, that I think we should respect plain text for
> reasons, and be modest about judicial lawmaking, except to defend
> and minority rights, for the same reasons. Leo asks me what I think,
on this
> view about the Griswold-Roe-Casey line of privacy cases. Today, I
think they
> are entrenched precedent. Were they rightly decided at the time?
Well, I
> think the case can be made that a woman's right to choose is a
> democratic right. I would have written the case law in terms of
> protection, myself, rather than appealing to unenumerated privacy
rights. As
> for the Ninth Amendment, as a matter of, it's meaningless. Let's
hope it
> stays that way.
> --jks
========== Why doesn't the burden of proof fall on the other side; that they have to show there isn't a right [to privacy, women's choice etc.. Isn't that what the 9th amendment in all it's glorious ambiguity is for? Problematics of rights discourse aside? If not, don't we really have a paternalist/authoritarian state right out of the starting gate of constitutional history, faking neutrality big time, like the realists say? And isn't the burden of proof on state power theorists to show that the 9th amendment isn't about performing some kind of check against the 10th amendment with runaway legislatures and said paternalist/authoritarian judiciary "ganging up" on the US citizenry, cheering each other on with each iteration of legislation and opinion like in the failed war on consciousness/drugs and sexuality in order to preserve 18th and 19th century notions of morality and liberty? It would seem that in these contexts the C. was perfectly designed to operationalize Ecclesiastes lament even as we have the liberty of "private enterprise" to create stuff that destroys the earth and attack other countries financial systems and infrastructure?


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