The choice of the next Supreme Court Justice is being closely watched by all sides. Some are geared up to protest the moment the nominee is announced. Some feel that depending on the nominee, their rights might change, particularly the current right of abortion (though some feel it would need two new justices to change that).
How could this be? Doesn't the Constitution define a system of government with separation of powers where no one person has so much power? Isn't the Supreme Court supposed to interpret the Constitution and not make law? Well kinda. They are supposed to interpret, that's the only way they can figure out if a search and seizure is "unreasonable" or not. It turns out that many rights aren't explicitly mentioned in the constitution or the amendments (well they are only in amendements) but have been inferred. I'm a loose constructionist and don't have a problem with that, but it does cause problems. Some are strict constructionists (which is perfectly valid) and feel that regardless of what the current moods of culture might be, they have to rule based on what the constitution says, since any two people could infer different things from a sentence.
The 14th Amendement was adopted in 1868 to address the rights of citizens post-slavery. The Due Process Clause states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . ." Making sure the rules are followed properly is called procedural due process. The real question is, what is "liberty"? While "freedom" is a good answer, it isn't any more specific. Substantive due process is ruling on the substance of the law (not just the procedures followed) to ensure liberty isn't infringed.
This is a big deal and greatly expanded the role of the Supreme Court. Substantive due process was used in the late 1800s to strike down regulations on corporations based on "liberty of contract". In the 1920s liberty was used to include parents' right to send their children to private school and have them taught a foreign language (really, there were laws preventing this). In 1967 a case defined that liberty includes the right to marry who one chooses and struck down laws preventing interracial marriage (it took until 1967!). In 1965 the decision of Griswold v Connecticut struck down a CT law that made it crime to use or counsel anyone in the use of contraceptives. In so doing the court found a "right to privacy" in the constitution including it as part of "liberty" in the 14th amendment amongst other places. Roe v Wade then expanded on this to include a right to abortion in a right to privacy defined as part of "liberty".
Justice Potter Stewart dissented in Griswold. He wrote "I think this is an uncommonly silly law...But we are not asked, in this case, to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do" He couldn't find a "right to privacy" in the constitution, and indeed, you have to go through some contortions to do so, and some aren't comfortable with that and hence the court struggles with figuring out which rights are implied by the word "liberty" and other things.
There is a way to remove this problem. Article V describes how to amend the Constitution. Imagine if we actually defined a right to privacy that said things like the government can't regulate the behavior of consenting adults when such behavior doesn't affect others; that the government can't interfere with families except to prevent abuse and that the government can legislate to protect the right of privacy from unreasonable abuses by other people, corporations, and the press. Maybe there's more but that's a start (the above is vague with respect to abortion, maybe it should be maybe it shouldn't, I'm not sure). It would need ratification by 3/4 of the states but would people really object to something like the above?
Having such an amendment, would make it much easier for strict constructionists and originalists to do the right thing. And it might make Supreme Court Justice nominations a little less partisan. Imagine that, no really imagine it. Isn't it nice?
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