Monday, July 10, 2006

The sound of settling 

While I usually defer to Jason's somewhat consistent ability to post a quote of the day, after reading Matthew Scully's critique of stare decisis I couldn't help myself. He writes, concerning "the Constitution's knock and announce requirement." :
This requirement was found hiding in the Fourth Amendment in 1995, still panting heavily from a 206-year chase in which it had eluded legal minds before then.

The stinging sarcasm of this brilliant line of prose aside, the recent trend of activists judges to pack nonsensical, imaginary clauses into the constitution like Microsoft bloat-ware is hedging on dangerous. Last week's decision to afford constitutional rights to non-citizens, and de-facto treaty status with al-Qaeda, in Hamdan v. Rumsfeld(pdf warning) comes immediately to mind, but it is only the latest in a string of decisions that have expanded the role and scope of the constitution.

Who can forget 2003, when the Court ruled that Brown v. Board, and constitutional equal protection, do not apply in "narrowly tailored situations, effectively keeping alive overt racial discrimination in college admissions. Later that year, reversing the 1986 Bower's v. Hardwick,the court ruled that the constitution allows for the sanctity of the bedroom, a decision that Scalia sharply criticized as the court "departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed." Indeed, the supreme court seems much less concerned with insuring the constitution is adhered to, and much more interested in forcing the constitution to adhere to a given agenda.

Tracing the phenomenon of the "magical, growing bill of rights" to Roe v. Wade, the classic example, it's easy to glean the origins of modern judicial activism in the so-called "implied right to privacy." Taking the Constitution in the context of the American Revolution, which was amusingly sparked over taxes and gun-control, it's not hard to see why the founders designated some areas as off-limits to government. But even an extremely careful, dare I say liberal, reading of the Constitution reveals that the only enumerated rights to so-called privacy appear in the realms of religion, firearm ownership, consenting search and seizure, public speech and private thought. And while it is tempting to pretend that the 4th and 5th amendments protect all manner of activities, the document clearly reads otherwise:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(emphasis, clearly, is mine)

As Justice Scalia rightly points out, it is left to other branches of government to determine what constitutes reasonable cause for crossing this threshold. The constitution makes no suggestion that some other, unenumerated realms of personal behaviour are simply off-limits to scrutiny entirely. The kinds of blanket protections issued by rulings such as Lawrence, and the profound social costs of absurd contentions like Hudson v. Michigan, are exactly the sorts of judicial over-stepping that were meant to be avoided by the constitution. Checks and balances, Mr. Kennedy, work both ways. The whole thing leaves me wondering: at what point will the constitution render itself ineffective by virtue of an implied right to disregard implied constitutional rights?

Let me point out, as a brief addendum, that I am not implying that such extensions of privacy as those forcibly imposed by the court cannot or should not be put in place. But the constitution rightly leaves these decisions to the people, in the form of state and federal legislation. Pretending that they magically emanate from the 5th Amendment is just poor jurisprudence.
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