No, We're The Party of State's Rights

The John Roberts confirmation hearings kicked off yesterday. I'll leave the legal analysis to guys who do this for a living - and among those that matter, Roberts seems to have gone over well.

But among the nattering left - well, you know where this is going, right?

In the same spirit that led Joe "The only thing we have to fear is fear itself" Biden to declare Roberts dead in the water before the hearings animates today's Strib editorial - apparently written by shills from the Democrat Party and/or the National Organization of Women.

The editorial:

What kind of nation does John Roberts envision for us? A land of vast individual freedom and limited government -- or of carefully prescribed rights and muscular state power?

Isn't this rich?

The Strib is all about limited government when it comes to "privacy" (more later) and abortion. But let the Taxpayers League mouth off a bit, and...

Onward:

Roberts' opening statement on Monday voiced respect for precedents, and stressed that he would "confront cases with an open mind,"safeguard liberties" and be open to the considered views of his colleagues -- good signs all, but with ample room for interpretation.

Well, duh.

Respect for judicial independence, as well as reluctance to apply political "litmus tests," should constrain senators from badgering nominees to reveal how they'll vote on matters before the court. Yet if the committee takes seriously its obligation to assure that the would-be chief will guide the court well, it will not shy away from questions that clarify his judicial philosophy.

In other words, "litmus tests are bad, but we'll encourage them to use them just this once.

Concepts that used to engender consensus -- equality, for instance, or liberty -- these days spur acidic debates about the courts' proper role in dictating what government, and citizens, may and may not do.

Rubbish.

Equality and liberty themselves still have complete consensus (unless you're a Democrat discussing taxes or the Second Amendment). The only "acidic" debate is over the courts' role in making law. The Strib editorial board favors it. Most conservatives don't.

The upshot has been fresh dispute over long-settled questions -- and a shift from the popular assumption that the Constitution was written largely to fulfill, not restrict, the American promise of freedom.

And it's here that worldviews diverge.

This was certainly the common belief in the 1960s. In that decade, the high court recognized poor defendants' entitlement to counsel, instructed police to inform suspects of their rights, outlawed racial discrimination in housing and polling places, scrapped prohibitions against interracial marriage and toppled state bans against contraception sales. Most citizens regarded these rulings as a judicial acknowledgment of an emerging understanding: Freedom is the core of American selfhood -- the assurance that this country's people may think, believe, speak and conduct their lives as they wish.

A wondrous concept, but many these days scoff at the philosophy that underpins it: that the Constitution protects "unenumerated rights" -- freedoms that the wording of the Constitution doesn't explicitly identify. The idea is as old as the Constitution itself; in fact, it's responsible for many of the freedoms Americans take for granted. Chief among them is privacy -- first recognized outright in the court's acclaimed 1965 birth-control ruling.

Which ruling, naturally, federalized legislation that should have remained - under state control.

Years later, a young lawyer for the Reagan administration wrote of "the so-called right to privacy." His name was John Roberts, and a single dismissive remark may be no cause for alarm.

Nor may it be dismissive.

Lawyers, maddeningly, deal obsessively with black and white. Not gray. Arguing with lawyers can be maddening - the gray areas that many of us just plain accept in life make many of them deeply uncomfortable - because the law is supposed to be unambiguous (which isn't necessarily the same as "clear"); either something is black, or it is white; if neither blackness nor whiteness can be distilled from the debate, then there's either legislation or a precedent-setting lawsuit in the works.

The "right to privacy" is indeed "so-called" - because it is never specifically spelled out in the Constitution. That doesn't mean that there is no "right to privacy" - it does mean that, at least as far as the Constitution is concerned, it is something that people conjured up under the Ninth Amendment, and to which they then appended other legal "rights" (like "choice", which is likewise a Ninth-Amendment thing - and whether "choice" means "kill the unborn" is still open to debate).

Lawyers often craft arguments that run at right angles to their personal sentiments, and it would be heartening indeed to learn that Judge Roberts views the Constitution more generously than did the young White House lawyer.

Piffle.

Roberts the younger was talking like a lawyer, a language in which meanings are specific, not implied.

American justice has flourished because the Constitution guarantees far more than its words convey.

No leaps are necessary to embrace this notion, for it's made explicit in the document's Ninth Amendment: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."

But for the Ninth Amendment, America would not be the nation it is. Without it, citizens would labor still under Jim Crow laws. Governments would still dictate what people may read, what political views they may hold, whether people in love may marry and whether couples may take charge of their reproductive lives. Freedom as Americans understand it would not exist; privacy, so fundamental to liberty, would be no more than a yearning. Certainly this isn't the legacy the nation's founders meant to leave us, nor is it a life Americans would likely tolerate.Nor will it be an issue, under Roberts.

But naturally it's the left that violates the Ninth (and Tenth) Amendments with the most wholesale aplomb; the Interstate Commerce Act has been used to trample states rights, and the courts' dangling penumbras have the salutory effect of creating vast new tracts of laws for courts to uphold and enforce.

For the Strib - who never met a government program or intrusion into the economy it didn't like - to suddenly get religion on the Ninth Amendment is disingenuous in the extreme.

Posted by Mitch at September 13, 2005 07:32 AM | TrackBack