Monday, September 19, 2005

Hugo Black had it very, very right

Eugene Volokh, on the Volokh Conspiracy, has a posting now about Justice Black's questions in oral argument that presciently predicted the Griswold privacy doctrine's impact on abortion laws. My comment follows:

The larger point that Black understood from personal experience was that any doctrine allowing the Court to create rights from whole cloth can be used to invalidate any law as soon as five Justices decide to do so.

It does not matter whether the source of the rights is passed off as substantive due process (an oxymoron), the Ninth Amendment (an anti-preemption provision), or eminating from the penumbras of other rights (the twisted progeny of Bill Douglas's imagination).

It also does not matter whether the claimed "right" is privacy (which can easily slide from contraception to abortion to homosexuality to adult consensual incest, polygamy, etc.) or the liberty of contract (sorry, my libertarian friends, the Constitution no more dictates your world view than it does Ted Kennedy's) or whatever other right five Justices like more than the electoral majority.

The unenumerated rights doctrine by any name and with any intent is an unvarnished usurpation by judges of the people's sovereignty. The purpose of a written constiutution is to allow the people to agree by super-majority to withdraw certain subjects from the majoritarian process. If someone wants other topics withdrawn, they must go through the same process -- Constitutional amendment. Allowing anyone or any idea to short-circuit this is the height of illegitimacy.


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