Now that Bush is in for another four years, it’s time to consider the likely results, and how we may encourage the positive and minimize the negative.
One of the big domestic impacts will be the upcoming Supreme Court vacancies. Lots of Bush supporters have big objections to an “activist court”, and see it as interfering with questions that should be left solely up to legislatures.
I don’t see that as self-evident. The 14th Amendment says that states may not deprive people of the “privileges and immunities” of the United States, and most people have taken that as a strong hint that the Bill of Rights is supposed to apply to state governments as well as to the Federal Government. Unfortunately, this includes the 9th Amendment, which states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, without offering any clue as to what those “others retained by the people” might be.
So how are these rights to be determined? By the standards of the time? Those standards are already expressed – by people voting for representatives to make laws, which incidentally makes any notion of other rights that are to be kept safe from legislatures meaningless. So, for that statement to have any meaning at all, there has to be some set of rights, not mentioned in the Constitution, that are supposed to be kept safe even from voting majorities or the transient standards of the time.
Is “privacy” one such right? It has the advantage of being buyneurontinonlinehere hinted at in the statement that people have the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. Of course “unreasonable” can be taken to be relative to existing law, and not to be an impediment to laws that might necessitate more extensive searches and seizures which then become “reasonable”.
But at any rate, the text of the Amendment explicitly denies the possibility that the text of the Constitution can be applied in every case where the question of whether something is or isn’t a right must be decided. Which means that we’re left with an arbitrary veto on Federal and State law in the hands of the Supreme Court.
Is this a bad thing?
As far as I can tell, the power to arbitrarily strike down law is better than the power to arbitrarily write law. And this power is not unlimited, since Supreme Court members can be removed by the Congress via the impeachment process. It’s just that the power to strike down laws is subject to less oversight than the power to write laws, which seems a good balance to me. And the Supreme Court has erred far more often in the direction of failing to strike down laws whose authorization cannot be inferred by any reasonable interpretation of the Constitution (i.e., one where a small section isn’t taken to render the rest of the document meaningless) than in striking down state laws that can reasonably be interpreted to be constitutionally kosher.