"The Supremes are coming, The Supremes are coming"
The U. S. Supreme Court decision in Roper v. Simmons handed down on March 1, 2005, is getting a lot of ink but should anyone be surprised?
That decision is merely another in a long series of Supreme Court cases that legislate from the bench. Indeed, the United States Supreme Court unilaterally and routinely amends the United States Constitution! The Court does not ask Congress for a two-thirds vote on the issue nor does it send the proposed amendments out to the states for ratification. It just dictates what the new Constitution is. One of many such cases is Roe v. Wade. Justice Blackmun wrote:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or Individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in this guarantee of personal privacy.'
The Court admits that it can find no right of privacy in the Constitution; the Court could not even find any solid precedent in its own prior rulings that extended a "right of privacy." It had to resort to a mushy amalgam of prior decisions, some nebulous "penumbras of the Bill of Rights" (whatever that means) and the common law to find the "right of privacy." From that shaky springboard, the Court leaped to the right of a woman to have an abortion.
I express no opinion on Roe v. Wade or a woman's right to choose. My thesis is that the decision should have been made by the legislature and not by an activist Court. Before that decision, there was no constitutional right to have an abortion. After the Roe decision there was a constitutional right to have an abortion. Play whatever semantic games with you will with that, it is a de facto constitutional amendment.
If you trace the history of judicial activism, the Machiavellian Marbury v. Madison (1803) decision claiming for the Court the right of "judicial review," a concept considered and then rejected by the men who framed the Constitution, was a masterful bit of lawyering. It also was a direct attack on the balance of powers set out in the Constitution; it set the stage for the modern Court's animosity toward religion, rejection of the rule of law - substituting the fiat of judges - and decisions that substantially limit the president's ability to protect us from foreign enemies.
This blog will present some facts about the Supreme Court - many in the form of direct quotes from published Court opinions - showing the Supreme Court's anti-democratic trends, and the disdain the Court shows for representative government, then will ask: "How Dangerous Are They?" The Court has usurped the legitimate lawmaking power of Congress and amends the Constitution whenever five justices can agree on what amendments are in keeping with their "feelings" and "intuitions" - we need to restore the balance.
That decision is merely another in a long series of Supreme Court cases that legislate from the bench. Indeed, the United States Supreme Court unilaterally and routinely amends the United States Constitution! The Court does not ask Congress for a two-thirds vote on the issue nor does it send the proposed amendments out to the states for ratification. It just dictates what the new Constitution is. One of many such cases is Roe v. Wade. Justice Blackmun wrote:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or Individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in this guarantee of personal privacy.'
The Court admits that it can find no right of privacy in the Constitution; the Court could not even find any solid precedent in its own prior rulings that extended a "right of privacy." It had to resort to a mushy amalgam of prior decisions, some nebulous "penumbras of the Bill of Rights" (whatever that means) and the common law to find the "right of privacy." From that shaky springboard, the Court leaped to the right of a woman to have an abortion.
I express no opinion on Roe v. Wade or a woman's right to choose. My thesis is that the decision should have been made by the legislature and not by an activist Court. Before that decision, there was no constitutional right to have an abortion. After the Roe decision there was a constitutional right to have an abortion. Play whatever semantic games with you will with that, it is a de facto constitutional amendment.
If you trace the history of judicial activism, the Machiavellian Marbury v. Madison (1803) decision claiming for the Court the right of "judicial review," a concept considered and then rejected by the men who framed the Constitution, was a masterful bit of lawyering. It also was a direct attack on the balance of powers set out in the Constitution; it set the stage for the modern Court's animosity toward religion, rejection of the rule of law - substituting the fiat of judges - and decisions that substantially limit the president's ability to protect us from foreign enemies.
This blog will present some facts about the Supreme Court - many in the form of direct quotes from published Court opinions - showing the Supreme Court's anti-democratic trends, and the disdain the Court shows for representative government, then will ask: "How Dangerous Are They?" The Court has usurped the legitimate lawmaking power of Congress and amends the Constitution whenever five justices can agree on what amendments are in keeping with their "feelings" and "intuitions" - we need to restore the balance.
posted by GN at 12:23 PM
3 Comments:
This essay, originally published on March 7, 2005, was re-published on March 13, 2005 in order to enable comments. To post a comment click on "comments" then "other" [if you leave it on "GN" it won't post unless you have my username and password]. I welcome all comments - pro and con.
The Supremes have done it again!!! Basing a change in the Constitution on "international law" instead of the will of the people of the USA is outrageous. There is no difference between a 17 year old who kills one day before his 18th birthday than one day after. Let a jury make the decision based on the facts of the case!!!!!!
Your comment about letting juries decide is right on the mark. Having worked as a prosecuting attorney as well as a defense attorney at different times in my life I know about "jury nullification" of laws they don't like or failure to convict no matter what the evidence, if the prosecutor has over-charged or "piled on" charges. But if the Supreme Court establishes a "bright line" under which the prosecutor cannot even ask for the death penalty juries do not get the chance to decide - and therefore help determine the "evolving community standards" which should obviously come from the COMMUNITY and not the Court.
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