>
> You'll never catch me using the term "judicial activist" or
"judicial
> restraint," except for rhetorical purposes. I agree with Nathan that
these
> terms are meaningless. I said I was judicially "conservative," which
means,
> in my terms, that I think we should respect plain text for
democratic
> reasons, and be modest about judicial lawmaking, except to defend
democratic
> 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
fundamental
> democratic right. I would have written the case law in terms of
equal
> 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?
Ian