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Sunday, August 28, 2005

Judging Matters

First, Right As Usual comments on NARAL's new ad, which this time seems to be dealing with facts rather than fiction:
The new ad, featuring smiling families and an American flag in the background, emphasizes a phrase in a 1981 Roberts memos: the "so-called right to privacy," and points out that he co-wrote a government memo saying the landmark Roe v. Wade decision legalizing abortion was wrongly decided.
Ah, yes, we must have the smiling families and the flag! I have no problem with NARAL if it wants to notify the public of indications of Roberts' actions in the past, but one must admit they don't quite add up to the picture of the clinic-bombing advocate of mass murderer the first ad depicted. Linda did some research on NARAL and came up with some interesting facts.

Second, I am engaged in following the Boomr/Carl debate proceeding onward at No Oil For Pacifists. It begins here and has now moved to a second post. By now the argument is centering on Boomr's basic contention that legislation based on "morals" is inherently religious and therefore constitutes a prohibited establishment of religion under the First Amendment. I believe he is focusing on a subset of ethical or moral rules restricting sexual behavior, but this causes me to roll on the ground in laughter.

Logically he must assume that the basic ideas behind such rules can have no objective basis. That is where he is wrong, and can easily be shown to be wrong. In fact, I can make a far better religious argument for the goal Boomr wants to reach than a constitutional argument. After I stop laughing, I will do so. For now, I leave you with Carl's comments:
We all have different morals, different public policy goals, etc. Why must judges use his? Or mine? If not prohibited in the Constitution, what makes either view "right?" If expressing a valid syllogism, how can judges overturn state law--even were they to disagree? Example: adultery hurts children, therefore we criminalize it. Boomr disputes. But he would acknowledge that the logic is valid, even while disputing the premise. The judiciary's role in interpreting the law under rational basis scrutiny is essentially confined to logic, not wisdom....

I'm supporting non-religious laws "geared solely towards the protection of the citizens and the land within our borders." Boomr doesn't share my morals. But neither the Constitutional language, nor boomr's expanding non-textual rights, give him the legal authority to enshrine his while forbidding mine.
And for more constitutional thought, I send you to Minh-Duc of State Of Flux on Originalism:
However the responsibility for amending the constitution is a legislative responsibility, not a judicial one. Even if a certain provision/article of the constitution is out-of-step with modernity or even outright unjust; Jurists should interpret it as it is written. If the provision/article is unjust, the decision will highlight the injustice. And the outrage(d) electorates will force their elected legislators to amend the provision/article. This process ensure(s) that legislators are responsible toward the electorates and ensure(s) that the new article/provision receive have consensus within society.

Activist judges by interpret(ing) the constitution as they see fit, prevent the constitution from being properly amended. The greatest harm of judicial activism is that (it) takes the debate away from the public realm and prevent(s) the people from participating in the constitutional process.
Life is very interesting, and I don't think the university of the blogosphere is becoming stale at all.


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