<HTML>It looks like all of that legal education has had a deleterious effect on the political thought of Comrades Nathan and Justin, who have both surprised me with the extent of their professed allegiance to judicial restraint. Terms such as judicial activism and judicial restraint are relative, contextual and entirely referential terms that have no fixed meanings. In this, they are like the terms fast and slow: 45 MPH is so slow as to risk causing an accident on a highway; it is so fast as to be clearly irresponsible in a school zone around dismissal time. I do not know what it means to call oneself an opponent of judicial activism or a supporter of judicial restraint in general [certainly the conservative majority of the Supreme Court would call itself strong believers in 'judicial restraint,' notwithstanding the lasty decade of decisions which culminated in Bush v. Gore.] As far as I can see, it has the effect of merely moving oneself on to the terrain of conservative jurisprudence, since "judicial restraint" has become a signifier for a conservative approach to jurisprudence. One might try to impose a more specific definition upon the term, such as deference to the will of the majority through its elected legislatures, but even this is problematic, as one denies that there are instances when the will of the majority must be overridden. And at best, one would be left with a term of public self-identification that the public understands differently from the self-identifier. I happen to think, to go to the particulars, that the decisions carving out an unenumerated [not explicitly listed] right to privacy, which go back to the late 1800s in origin BTW, leading up to and including Roe v. Wade, were entirely correct. In some explicit commentary, Nathan disagrees; Justin makes no specific mention of this area, although the general tenor of his comments would lead one to think that he has the same position. It is important to note that the right to privacy is not the only unenumerated right which the Supreme Court has recognized. Freedom of association is another, very important unenumerated right. Other important unenumerated rights, which have been recognized in whole or in part by the Supreme Court or by the highest court in a state, include the right to marry, right to travel, right to die, right to live where one pleases, right to consensual sexual relations with another adult, and the right to confidential communication with one's doctor, lawyer and/or minister. [Under the doctrine of 'new judicial federalism,' the highest state court may recognize a right under a state constitution that the Supreme Court does not recognize under the national constitution; thus, the state of NY, for example, has recognized an unenumerated right to private consensual homosexual relations under its state constitution, although the Supreme Court would not do so the same in Bowers v. Hardwick.] Eliminate unenumerated rights, and one has eliminated an awful lot of territory in the battle against an authoritarian state. And that 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. The real issue should be how to interpret the ninth amendment. There is a good case to be made against the broad philosophical 'natural law' approach, which does allow the Supreme Court to read almost anything into the category of unenumerated rights. And the use of the concept of substantive due process, the idea that the content or substance of a law does not unfairly or unreasonably restrict one's life, liberty and/or property, is only slightly less open-ended. Certainly its use during the Lochner era, when the Court made the protection of laissez-faire capitalism its consitutional doctrine on the premise that regulation of business was an unconstitutional restraint on the right of property, demonstrates just how arbitrary its use might be. But the Court used neither of these approaches in Roe v. Wade, or in establishing a right to association. Rather, it took the approach of looking at the text of the Bill of Rights and 14 Amendment, and seeing what unenumerated rights were implicit in that text. The language of the Roe v. Wade decision specifically mentions a "penumbra [a zone, an area, a shadow] formed by emanations" from other enumerated rights. Thus, insofar as anyone could based on an unenumerated right on the text of the Constitution, the Court did so in recognizing the right to privacy. 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 --</HTML>