<HTML><FONT FACE=arial,helvetica><FONT SIZE=2>Nathan:
<BR><< Actually, while "judicial restraint" can be used in political ways, there
<BR>is a rather simple neutral meaning that is not contextual. If the legislature
<BR>passes a law and the courts rule that it is constitutional, that is judicial
<BR>restraint. When they override the majority decision and rule it
<BR>unconstitutional, that is judicial activism. >>
<BR>
<BR>Leo:
<BR>But then it no longer makes sense as an identifying term of a judicial
<BR>philosophy, since everyone agrees that there are instances where a law must
<BR>be struck down as unconstitutional, and there are instances where it should
<BR>be upheld. The real issue is how one defines or delimits the instances when
<BR>laws should be overturned.
<BR>
<BR>Nathan:
<BR><< For most of this nation's history until the New Deal broke the power of
<BR>the Supreme Court, it was progressives who denounced the rightwing judicial
<BR>activism of the courts and called for judicial restraint. Under the Warren
<BR>Court, however, progressives became addicted to the deus ex machina of the
<BR>Supreme Court saving them from the democratic fights they might lose on
<BR>occasion. Some of the decisions on basic speech freedoms and racial equality
<BR>were necessary because racist structures were subverting democracy in a way
<BR>that the normal electoral realm could not correct, but others were just
<BR>political preferences of progressive Justices overriding other views decided
<BR>in democratic forum. >>
<BR>
<BR>Leo:
<BR>One can have an interesting political debate about the consequences of
<BR>establishing important democratic rights through judicial review. Without a
<BR>doubt, a democratic right established through majority rule is far more
<BR>secure. But if we waited for majority rule alone to end de facto segregation
<BR>and the denial of voting rights in the Jim Crow South, we would probably
<BR>still be waiting.
<BR>
<BR>The experience of the Warren Court shows precisely that there is no necessary
<BR>political articulation of the judicial approach you describe. And you
<BR>yourself want to uphold the Warren Court approach with respect to the Bill of
<BR>Rights and the 14th Amendment which, I might point out, was basically the
<BR>main thrust of the Warren Court. So far as I can see, the only specific case
<BR>for an overreaching judicial activism you have made regards Roe v. Wade,
<BR>which was not even a Warren Court case.
<BR>
<BR>Nathan:
<BR><< It is exactly the basis of unenumerated rights in rightwing 19th century
<BR>jurisprudence that made many progresives like Hugo Black denounce the Court's
<BR>citing of such precedents, the same ones that struck down minimum wage laws,
<BR>child labor laws and almost every other attempt at progressive legislation in
<BR>the late 19th and early 20th century. >>
<BR>
<BR>Leo:
<BR>But the Warren Court and the Burger Court [in Roe v. Wade] clearly eschewed
<BR>the substantive due process and natural law approaches to identifying
<BR>unenumerated rights, which speaks directly to these earlier laissez-faire
<BR>capitalism precedents. And remember that Hugo Black argued for incorporating
<BR>[applying to state and local governments, and not just the federal
<BR>government] the entire Bill of Rights, not just the fundamental rights, as
<BR>Cordozo and Frankfurter advocated, so he was far from consistent on this
<BR>question. Your position sounds much more like the Frankfurter/ Cardozo than
<BR>the Black position.
<BR>
<BR>Nathan:
<BR><< That [freedom of association] is not an unenumerated right. That is
<BR>derived directly from the First Amendment. The Court recognized that a right
<BR>to speak without the right to speak to someone is an empty right. >>
<BR>
<BR>Leo:
<BR>Lawyers sure are shifty with their definitions.{-; Clearly, there is no text
<BR>in the Bill of Rights or the Constitution that explicitly guarantees freedom
<BR>of association. No matter how you, or the Court, spins that, it seems to me
<BR>that it is thus clearly an unenumerated right. Now, it certainly is implicit
<BR>in the First Amendment's protections of freedom of speech and assembly, but
<BR>so is the right to privacy clearly implicit in the fourth amendent's
<BR>protection against unreasonable searches and seizures, the fifth amendment's
<BR>protection against self-incrimination and the fifth and fourteenth
<BR>amendments' right to due process. You want to make a distinction without a
<BR>difference here, to deny the full reach of your position in opposition to
<BR>recognizing unenumerated rights.
<BR>
<BR>Nathan:
<BR><< Sort of - its a right that polygamists, gays and anyone seen as deviant
<BR>can be denied at will. Its a rather shaky right that has been used more to
<BR>support certain other rights, such as against racism in the decisions
<BR>striking down misagenation laws, but has little real content. And frankly has
<BR>little content that the democratic process has not fully protected, since
<BR>heterosexual married couples are not the most powerless voting group in
<BR>society. >>
<BR>
<BR>Leo:
<BR>I have managed to be part of every group denied the right to marry, having
<BR>been involved in gay relationships and now in an interracial relationship,
<BR>and I must say that you seem just a little too glib in announcing that the
<BR>rights would be so easily protected by majority rule. Bloody Alabama just
<BR>barely managed, by popular referendum in the year 2001 forty years after the
<BR>Supreme Court declared anti-miscegnation laws unconstitutional in Loving v.
<BR>Virginia, to take out of its state Constitution a prohibition of interracial
<BR>marriage. And I don't know where you have been during the debate over gay
<BR>marriage, but the debate I have seen makes it fairly clear that this is not
<BR>about to be recognized by the majority in most states for many years to come.
<BR>
<BR>Nathan:
<BR><< Explicitly [the right to travel] in the constitution based on the
<BR>privileges and immunities clause which guarantees that states must treat
<BR>citizens from other states equally. >>
<BR>
<BR>Not in my book. The text reads: "The citizens of each state shall be entitled
<BR>to all privileges and immunities of citizens in the several states." As I
<BR>read it, the right to travel is at best an inference of the fact that
<BR>Pennsylvania must treat me, as a resident of New York and citizen of the US,
<BR>as it would treat its own citizens. But it is hardly an explicit, enumerated
<BR>right in the way my due process of law is, and if Pennsylvania decided to
<BR>deny its own residents the right to travel [an implausible hypothetical, I
<BR>concede], it could do the same to me.
<BR>
<BR>Nathan:
<BR><< Yes - and I agree with Justin that this [the right to die] is better
<BR>decided in the democratic realm. >>
<BR>
<BR>Leo:
<BR>Perhaps. The constitutional power to recognize unenumerated rights does not
<BR>have to be exercised in each and every instance.
<BR>
<BR>Nathan:
<BR><< The right to live where one pleases [is] not really recognized -
<BR>exclusionary zoning and other methods have been constitutionally validated to
<BR>deny people the right to live with too many people in the same space >>.
<BR>
<BR>Leo:
<BR>It is not an unlimited right [what right is?], but it is a recognized
<BR>unenumerated right nonetheless. Witness the striking down of "restrictive
<BR>covenants" for communities.
<BR>
<BR>Nathan:
<BR><< right to consensual sexual relations with another adult is absolutely not
<BR>[is not an unenumerated right]. Bowers v. Hardwick made clear that
<BR>consensual sexual
<BR>relations is not a constitutional right; heterosexuals largely have a right
<BR>to privacy based on marital relations and the need for procreation - one
<BR>reason I find the "right to marry" to largely be a reactionary right as
<BR>applied by the Court. >>
<BR>
<BR>Leo:
<BR>As I noted in my original posting, this is not the case in New York State. In
<BR>People v. Onofre, the Court of Appeals [the state's highest court] used the
<BR>doctrine of 'new judicial federalism' promulgated by the Rehnquist court to
<BR>strike down the NY State sodomy law as a violation of an unenumerated right
<BR>to privacy, accepting the same argument that the Supremes rejected in Bowers
<BR>v. Hardwick, but with reference to the NY State Constitution. Since 'new
<BR>judicial federalism' treats the rights the Court recognizes in the federal
<BR>constitution as a floor, and not a ceiling, of protection, it is quite
<BR>possible to do this. The NY Court of Appeals has done the same thing with
<BR>respect to the exclusionary rule of the protection against unreasonable
<BR>searches and seizures, refusing to accept "good faith" exceptions. And in any
<BR>case, isn't the problem that the Court decided Bowers v. Hardwick wrong,
<BR>violating its own precedents?
<BR>
<BR>Nathan:
<BR><< As noted above, not really. The bastion against the authoritarian state is
<BR>the Bill of Rights and if followed to the letter - ie. Congress shall make NO
<BR>law regarding speech - it would be plenty. In fact, the doctrine of
<BR>unenumerated rights encourages the Courts to "read" in exceptions to the
<BR>explicit text of the Constitution. >>
<BR>
<BR>Leo:
<BR>The Bill of Rights and the 14th Amendment are clearly central here. But if
<BR>not for the doctrine of incorporation coming out of the 14th Amendment, based
<BR>on a very broad and "activist" interpreptation of its due process clause, the
<BR>Bill of Rights would not apply to the states and local governments, and would
<BR>thus be a dead letter. I think that your argument for a jurisprudence of
<BR>"restraint" has great difficulty separating itself from all of the Court
<BR>decisions you laud.
<BR>
<BR>Nathan:
<BR><< Yes. [In answer to the charge that his position would leave the problem
<BR>of what the ninth amendment actually does when it protects "unenumerated"
<BR>rights. For all of the talk of relying upon the actual text of the
<BR>Constitution, those who want the court to foreclose the option of identifying
<BR>"unenumerated" rights, are, in effect, demanding that it ignore the ninth
<BR>amendment, treating it as a dead letter.] There is no reason
<BR>to give an unelected Court the right to impose their beliefs on the rest of
<BR>society without any democratic accountability... Finding new unenumerated
<BR>rights is undemocratic in a way that no democratic society should accept from
<BR>unelected judges.]
<BR>
<BR>Leo:
<BR>So we must faithfully follow the text of the Constitution... except for the
<BR>Ninth Amendment. Doesn't sound like a consistent doctrine of jurisprudence to
<BR>me.
<BR>
<BR>Leo Casey
<BR>United Federation of Teachers
<BR>260 Park Avenue South
<BR>New York, New York 10010-7272 (212-598-6869)
<BR>
<BR>Power concedes nothing without a demand.
<BR>It never has, and it never will.
<BR>If there is no struggle, there is no progress.
<BR>Those who profess to favor freedom, and yet deprecate agitation are men who
<BR>want crops without plowing the ground. They want rain without thunder and
<BR>lightning. They want the ocean without the awful roar of its waters.
<BR><P ALIGN=CENTER>-- Frederick Douglass --</P></FONT></HTML>