Courts Rewriting Our Rights Creating New Law in Shadows
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One of the lessons first learned in a course on constitutional law is, “There is no Constitution. There is only the Supreme Court.”
In other words, “The Constitution is what the justices say it is.” We are told to forget most of the text. Remember only the headlines like “due process” and “equal protection.” Within those words, the justices can conjure all the rights and obligations liberals want, regardless of what either the people prefer or the document establishes.
It was just a few days ago that the Ninth Circuit Court of Appeals decided that equal protection meant there was no “rational basis” for the people to establish marriage as a bond between a man and a woman. In short, the people were “irrational.”
Among the millions of voters who voted on whether to keep marriage and procreation a heterosexual affair, only two of three judges in a San Francisco split opinion were considered sane and had the right to vote.
The core of our constitutional crisis is that we ask courts to solve problems. Congresses, legislatures, presidents and governors are democratically elected to solve problems. But too often, their purpose gets in the way of their re-election.
They gladly, then, defer to judges — whose sole purpose ought to be to interpret, not write, the solutions that others craft. The politicians plead that they are helpless in the face of an independent judiciary while silently applauding the “tyranny of the minority.”
The problem is evident in the current controversy over contraception. In 1965, Justice William O. Douglas, writing for the Supreme Court, stated that he had discovered a “right to privacy” hiding in the “penumbra” (the twilight zone between shadow and substance) within the Constitution.
Dissenting Justices Black and Stewart countered that “privacy,” no matter how compelling the idea, was found nowhere in the document. But the court had no faith in the people of Connecticut to govern themselves. The court declared that based upon a “new” constitutional right, neither the states nor the people had the right to forbid contraceptives.
Now, if I had been a Connecticut voter in 1965, I would have voted to make contraceptives legal. The problem of Griswold, its stepsister Roe v. Wade, and the other cases where rights drawn by our Founding Fathers are fabricated in the imagination of judicial academics is that we, like so many before us, trade our right to self-government for the convenience of creating popular law without open debate
I feel sorry for 18-year-old Connecticut high school seniors who, in the 1960s sexual revolution, could not celebrate prom night with a girlfriend and a prophylactic. I even feel sorry for a gay couple who could not marry and be recognized as an heir and companion of one to the other. But I cannot sacrifice the right of people to govern themselves because “hard cases make bad law.”
Our Constitution, in its 10th Amendment, reserves to the people and their sovereign states those rights not granted to the federal government. This means that since the Constitution does not state when life begins, it is up to the states to decide. It is also up to a state like Connecticut to make a decision whether its position on life will allow a premarital high school fling.
And, in some disagreement with my conservative colleagues, I believe it is also up to Washington State and North Carolina to freely and differently decide upon the marital rights of homosexual couples.
My father used to say, “The road to hell is paved with good intentions.” When Justice Douglas created the constitutional right to buy contraceptives, he was only trying to make life better for consenting adults.
That “good intention” was punctuated in the past few days by a federal government that is about to require that those who religiously object to contraception be required not to sell contraceptives, but give them away for free.
The notion of shared sovereign states joining in a limited federal government is a theory that took great courage from the brilliant compromises of our founders. To applaud those judges who believe that they can rewrite our rights in the shadows does us no good.
Robert M. Levy is chairman of the Moore County Republican Party. Contact him at Law52@prodigy.net.
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Comments
geoffcutler 3 months ago
Excellent article! Pertinent and timely! Seems oddly familiar somehow....
JimHeim 3 months ago
Another column attempting to explain how any vote of the people (even one representing less than 41% of the electorate) can establish laws with no better purpose than to oppress a minority. Not true.
A poll last year suggested that if a measure were put on the ballot in Mississippi to prohibit inter-racial marriage, it would pass. But it would be illegal and immediately thrown out by the courts.
No one has yet put forth a rational argument that the government has the right to prohibit contraception. It is the right of a free people to make such decisions for themselves. Anyone who thinks that government is free to intrude on our privacy in that way is free to speak up and tell us how that works. I'd love to hear it.
In the meantime, I remain convinced that withholding the benefits of marriage from a minority group has no rational basis, confers no benefits to society and should be stopped, by the courts in necessary. Liberty requires it.
TreadLightly 3 months ago
Mr. Heim, we don't expect you to understand the definition of marriage as a bond between one MAN and one WOMAN. You have to open the Bible to see where God made that definition. I have officiated at the joining of untold numbers of such couples, and thourougly enjoyed my own for 47 years.
We don't expect that you have opened the pages of the Old Testament to see numerous examples of the people rejecting God, adopting Baal's adulterous and homosexual behaviors and being taken into captivity until they repent.
If you come back and say you are a regular attender at some religious gathering we can rest assured that they are either Wiccan Withces or "Christians" using "modern theology." (Also called "Higher Criticism.") These brillliant Marxist era scholars are the ones who concluded that Matthew did not write the Gospel of Matthew and Luke did not write the Gospel of Luke. That same dilligent attention to Biblical matters can also dismiss the Bible warnings against adultery, homosexuality and bestality. (If your preacher wants to defend his reputation in that he thinks that the Bible prohibits adultery, tell him to call me and show me the verse that says one is wrong but the others are permissible.)
But excuse us if we resist the Marxist banning of God from our society. Step back a momemt and think about what the Federal judge declared for Winston-Salem. First, realize that most of the population of that area calls themselves Christians. Then ponder that a Hindu could open the meeting and say anything he wants. Same for the Muslim, Wiccan Witch or Baal worshiper. The only name prohibited by his order is Jesus Christ, the one that most of the population would pray in the name of.
You can drag up the name of any minority that you like, but excuse us if we no longer worry about the rights of all those minoritues, but want to get the rights of the majority restored. And avoid God's wrath which will come on the fans of Sodom and Gomorah. (Check Jeremiah chapter 23 for a picture of why the present religious world is in such a mess. (And Second Peter chapter 2.)
geoffcutler 3 months ago
"No one has yet put forth a rational argument that the government has the right to prohibit contraception. It is the right of a free people to make such decisions for themselves." JH
If governemnt doesn't have the right to prohibit contraception, then where does it get the right to force free contraception on religious groups?
"In the meantime, I remain convinced that withholding the benefits of marriage from a minority group has no rational basis" JH
And so your opinion is rational, and those who disagree with you are irrational. Can you not see the problem with that argument?
Toyboy52 3 months ago
@ jim Heim . All the article says is that the Constitution does not prohibit States from banning contracontaception or abortion. Whether there ought to be such a prohibition is another question. If there should be, then the People and the States have the right to amend the Constitution. Judges have no right to do so.
In a Democracy, the ends ought not justify the means.
Yukonjohn 3 months ago
The 9th C fo A serves where l live. They are pretty "wacked out" on most things, but hey, the reside in San Francisco. That said, I am a firm believer of the 10th Amendment, and states should be able to vote as they see fit, and if you disagree, move. Also, Mr. Levy said more or less, that we could not expect privacy in our lives. Sir, you are wrong.
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.
dustyrhoades 3 months ago
“There is no Constitution. There is only the Supreme Court.”
I don't know where the hell you took ConLaw, but that's not the way they put it at UNC Law.
TreadLightly 3 months ago
Yukonjohn--You touch an issue that I think has become muddled. You named the protected places where nothing short of a court order or absolute probable cause is allowed to intrude. When we go out into the community and do business, I don't see a strong case at all for the law to bind that retailer to be bound with keeping that transaction private. All manners of ethics, business sense, and other considerations should keep most transactions confidential.
Making abortion legal because of privacy seem a little like making counterfeiting legal because we deserve privacy. What does privacy have to do with making the act itself legal.
Toyboy52 3 months ago
@ Dusty: Did your Con Law Professor tell you where to find the "penumbra" ? It is supposedly the place in the Constitution where justice Douglas found the right to contraceptives.. Unless you can find it, and then the phrase you question may be correct.
Toyboy52 3 months ago
@ yukonjohn. When the Supreme Court refers to the right to privacy they are not referring to the right to be secure in a home. They are referring to sexual and reproductive rights. Under this theory the Court has found that parents have the right to exclude grandparents from the lives of children because parents have the sole right to raise their children.
The so called right to privacy may be a good idea or a bad one but it is not foundi in the Constitution.
Yukonjohn 3 months ago
TreadLightly, I see it differently than you. I see that transactions should be kept confidential, and for the most part, none of the govt's business. You lose me with your analogy, I do not see that as an issue, it is a person's medical information, and none of anyone's business.
JimHeim 3 months ago
I missed the mention of the Bible in the Constitution. Please point it out to me.
Remember that people assuming positions in the federal government don't put their hands on the Constitution and swear to uphold the Bible. If religious beliefs are all that are behind the denial of basic human rights to gay Americans, you are in total error. It says that in the First Amendment.
JimHeim 3 months ago
geoff, my opinion matched that of the Court of Appeals. Before you take rights away from Americans, you have to have a really good reason. Just because we've always discriminated against them is not enough.
So, what exactly is the reason that the Constitution should allow you to dissolve the marriages of 18,000 gay couples in California?.Why should 41% of registered voters tear those families apart? And why should the courts allow it? Why are gay families to be denied the benefits that our laws accord to their straight counterparts?
geoffcutler 3 months ago
You guys keep arguing amongst yourselves about what marriage is and isn't. The rest of us are talking about something else. Hard to debate people who can't seem to grasp the subject matter.
geoffcutler 3 months ago
What, you think Einstein had it on Moe? No wonder you come off the way you do.........smile
SH59 3 months ago
geoffcutler Says "If government doesn't have the right to prohibit contraception, then where does it get the right to force free contraception on religious groups?" You think that the Government is making people take contraception? You have it wrong, it's making contraception available for anyone who "CHOOSES" to take it. No on is forcing anyone to do anything and it's the Governments job to make sure everyone has the same opportunity, not to discriminate. I think your more afraid that contraception might be available to people who couldn't ordinarily use it. What's wrong with that?
geoffcutler 3 months ago
That's not accurate. The government is imposing rules on Catholic institutions, hospitals and schools, to supply free contraception and other services as part of their insurance plans. Individual choice to avail oneself of those services, is after the fact.
My point to Heim was, if governemnt doesn't have the right to prohibit health services or drugs, then how does it have the right to force those same health services and drugs on certain segments of religious society? This argument is very closely tied to what the Supreme Court will hear when Obamacare comes before it.
Get past the personal hypotheticals about what I might think about contraception, not only because your suspicions are completely wrong, but because they muddy the waters of debate. Government shouldn't be involved in any of this stuff. That's more to my point.
geoffcutler 3 months ago
"I missed the mention of the Bible in the Constitution. Please point it out to me." Jim Heim
Funny thing, Jim, I missed the part about Gay marriage. Amazing the things our founders forgot to mention, isn't it?
JimHeim 3 months ago
geoff, under the law (and endorsed by Scalia) when a religion becomes a company it gives up your religious specialness. Churches can continue to discriminate against their employees. Once it's a school or a hospital or any other business, the rules change and its treated like all others.
If a church bought an airline would it still be required to follow government safety rules? What if their religion taught that God would not let any harm befall their passengers. Do they get an exemption to practice their faith?
JimHeim 3 months ago
Geoff, The 14th Amendment says quite clearly, "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." Please explain how marriage can be limited to one group of Americans and denied to another. What part of 'equal' is that?
BTW - The word gun is nowhere in the Constitution.
DoubleHeroides 3 months ago
From my reading it appears that Mr. Levy seems to believe that a majority rule is the only rule in a state or nation. That just because 51% of a group decides the world should work a certain way that it should work that way regardless of the possible detriment to the 49% (I’m exaggerating the percentages) with the always present option of “if you don’t like it leave.”
I would contend that such a system is not what America or democracy is all about. Democracy doesn’t mean the majority gets whatever it wants it means compromise, coming to the table and everyone willing to be a little unhappy but at the end of the day content in order to ensure that the system continues to function properly.
Does it suck when you don’t get your way all the time? Sure does. Did your mom slap your hand when you reached for the candy leaving the grocery store? I know mine did and I had a sibling so we outnumbered her democratically to boot! My point is that sometimes just because you want something, even if you have the numbers behind you, doesn’t make it right.
We have a decided lack of compromise in our nation and the system isn’t working correctly anymore.
Unrelated to my post, I'd be curious where Mr. Levy went to law school and took a constitutional law class where he was told that there are only the courts. (not an attack, just curious).
Courseaire 3 months ago
JH - "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." Please explain how marriage can be limited to one group of Americans and denied to another. What part of 'equal' is that?" - No groups rights are limited or denied, each have a right to marry.
JimHeim 3 months ago
courseaire, that's the lamest argument yet. If we passed a ballot measure allowing marriage on with partners of the same sex, would you consider the law fair? After all, everyone could marry.
Courseaire 3 months ago
JH - Why should everyone marry? The law provides equal rights to individuals, not couples or groups.
JimHeim 3 months ago
courseaire, this may come as a surprise, but only individuals marry.
Courseaire 3 months ago
JH - Again, why should everyone marry? Just as individuals have a right to bare arms (Larry the Cable Guy as an example), speak, vote, etc., does not mean that the right has to be exercised. There are few individuals better off not exercising a few of those rights,
teufelhunden 3 months ago
Y'all are going in circles. PO-tat-Oh, Po-TAT-oh...let's call the whole thing off!!!!!
JimHeim 3 months ago
courseaire, what chucklehead ever said that everyone should marry? The question at hand is if the state has the power to prevent certain groups from marrying, and if so, on what basis.
Courseaire 3 months ago
The state has the right to provide the same individual rights as the Constitution, but the cannot limit those individual rights.
JimHeim 3 months ago
courseaire, I'm sure you were trying to make a point. Is it that if one set of individuals has a right, all individuals share that right? That is to say, if one group of adults can choose and marry a life partner, all adults share that right?
Courseaire 3 months ago
As far as marriage (holy or civil) - one male/one female. If you want to make laws giving individuals legal rights for tax benefits, assigning/splitting of assets, health, wellbeing or death or disposal of remains after death, etc., I've no problem with that, but as you say, make it a partnership or joint guardianship not a marriage or civil union. Then all will have the same rights as any other individual.
geoffcutler 3 months ago
Jim, what is the context of section 1 of the 14th amendment? Why was it written? What does it mean by equal protection, and who does it aim to equally protect?
Courseaire 3 months ago
All - this might help you understand the meaning of the 14th: Should we live by "rule of law" or by "rule of man" (judicial fiat). Here is an excellent explanation by a friend of mine, Michael Farris, a constitutional attorney: http://constitutionreclaimed.com/Blog/
JimHeim 3 months ago
Geoff, Here it is:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The language is English and the intent is clear. Note the 'equal protection of the laws' part. If you give the right to marry to one segment of the population,it must be extended to all. Can you think of a rational reason why that might not be true?
Courseaire 3 months ago
You keep forgetting that they have the right to marry - it's never been denied, fully enforceable by the courts. Of course, should they divorce all equality is then denied.
Bigguy 3 months ago
No they do not have the right to marry, and if thier partner is in the hospital they could be denied, visitation, or actions that would be delighted to a spouse. Where is that fair and equal?
geoffcutler 3 months ago
Jim, I was reading the amendment when I asked, "Jim, what is the context of section 1 of the 14th amendment? Why was it written? What does it mean by equal protection, and who does it aim to equally protect"? I know what it says, but what does it mean? who's it for and why? What's the context?
Bigguy 3 months ago
I meant to say delegated. Darn Ipad
geoffcutler 3 months ago
Need a little help, Jim? Let's start here:
This article explores Congress’ intentions when ratifying the 14th Amendment, specifically in the context of the Bill of Rights through race relations. To understand the country’s views on race leading up to the 14th, one must first consider the development of race laws before the Civil War from both the northern and southern viewpoints. This article provides examples of Negrophobia in the north and the efforts of many leaders to change discriminatory laws, and protect free blacks while also honoring the Constitution which protected slavery. Furthermore, the article considers the 14th as a reaction to the violent and hateful “black codes” which followed the 13th Amendment, to protect the position of the freedmen, their civil rights, and the civil rights of those who would defend them.
geoffcutler 3 months ago
"The language is English and the intent is clear." Jim Heim
That's odd, Jim, the intent seems to clearly be about something else altogether.
Courseaire 3 months ago
Under your reasoning you cannot deny a man from marrying more than one woman/man or deny a woman more than one man/woman. If you want equal rights in your eyes, then change the laws so that you can give anyone dominion over your body through a legal document except then that would deny a woman's right to an abortion without consent of the father.
Bigguy 3 months ago
I will go back to my premise is why are gays denied the same rights as straights when it comes to marriage. If a gay couple were admitted to let's say a Catholic hospital, they could be denied visitation, life decisions that only a spouse can or should make. Those judges that overrule the vote "of the people". Did not do it for spite, laughs or to ruffle some feather. They did it because it was thierry job.
JimHeim 3 months ago
Worse, our fighting men and women in America's military are treated unequally. Gay troops can't confer the usual benefits on their dependents. Maybe someone can explain to me why equal rights are not extended to those putting their lives on the line for our rights.
JimHeim 3 months ago
geoff, what's the secret code here? How come English words don't mean what normal people think they should?
geoffcutler 3 months ago
My favorite type of logical debate, and Jim, just like your master, Terry McAuliffe, when you're caught, or you have no answers, dodge, feint, talk about something else altogether. Make it look like there is something wrong with your opponent, not the argument. Practised now long enough on the American people by the left, some actually believe it's now acceptable...that is... depending on what the meaning of "is" is. Congratulations! You've learned well, JIm.
Problem is, your arguments have collapsed.
SH59 3 months ago
geoffculter said: "Get past the personal hypotheticals about what I might think about contraception, not only because your suspicions are completely wrong, but because they muddy the waters of debate. Government shouldn't be involved in any of this stuff. That's more to my point." Government has always been involved with deciding what insurance companies are able to offer. The process became almost comedic when approving Viagra without any conflict as soon as it was on the market. Now not every man is forced to take Viagra, it is made available through insurance for those who need it or might want it. That's the way it works for all drugs, no one has to take something they don't want but it is available to anyone. The Pill should be equally available for those who choose to use it.
geoffcutler 3 months ago
Yes, all of these things should be readily available to the public. I agree. This issue has to do with government mandating that the insurance policies of religious institutions morally opposed to contraception now free forced to carry those drugs, for free.
SH59 3 months ago
Geoffcutler, you are making the assumption that no woman whether she is Catholic or not should have birth control available to her if she's working in a Catholic institution.
JimHeim 3 months ago
Geoff, what argument collapsed? The 14th amendment means exactly what it says. Is there some controversy I haven't heard about?
TOYTIME 3 months ago
Many religous people take offence to the idea that the word "marriage" has traditionally meant the joining of two people (man/woman) before God in a religous ceremony that for most is a sacred event. These same people who may see no problem at all with homosexuals enjoying the same rights and privaliges as "married" couples enjoy, are put off by the simple word "marriage". I disagree with both President Obama and the Republican contenders in their stance that "marriage" is only between A man and a women. If the verbage does not suit your sensibilities, well that is understandable, just as it understandable that gay folks would like to be "legally" married in the eyes of our national laws. Maybe if we further defined "legally married" and for those so inclined "Holy Married" and each is given the same rights and privilages, and pitfalls in case of divorce, than we can move on.
SH59 3 months ago
"Maybe if we further defined "legally married" and for those so inclined "Holy Married" and each is given the same rights and privilages, and pitfalls in case of divorce, than we can move on." I like that Toytime!
Bigguy 3 months ago
That sounds to darn reasonable!
geoffcutler 3 months ago
SH59...No I am not. What a woman chooses to do with her body is up to her, not me, and certainly not the government.
And Jim, yes, the 14th says exactly what it says, and the intent is clear. What it doesn't say, or have anything to do with, is same sex marriage. But you wouldn't answer those questions, so I had to do it for you. Since it was acceptable, and the right thing to do to amend the Constitution to equally protect blacks, then why, Jim, please tell us, isn't it acceptable to amend it with a new contitutional law to allow same-sex marriage?
Bigguy 3 months ago
Mr. Cutler what is wrong with "It is self evident that all men are created equal". Do you need a amendment to be changed to meet your view points. You know what, the founding fathers may not have cared less about who gets married. And go ahead and give your man-dog Bill O'Reilly and Rick(google it)Santorum talking points.
SH59 3 months ago
Geoffcutler, I guess I don't understand if insurance offers contraception to all women then why should there be discrimination against women who work for a Catholic institution regardless of their religion?
TOYTIME 3 months ago
I don't think Obamas' views on Marriage are any different than Santorums' are they?
geoffcutler 3 months ago
I don't know Bigguy. What's wrong with it? Other than it is "...that all men are created equal,..." and that the clause you mention comes not from the Constitution, but in a letter to King George, better known as the Declaration of Independence. But never mind. Tell me my viewpoints, since you seem to know. I'd like to hear about them.
As far as the founders go, you may be right. They probably wouldn't care who gets married. I don't, particularly. But they would care about the question of whether it was to be considered a "right," how the federal government decided it was a "right," and what steps were taken to turn that "right" into law. Which is all I've been concerned with to do with this argument.
geoffcutler 3 months ago
SH59, while I can't speak for the Catholic Church, my understanding is that they feel it's against the moral teachings of their religion that their carriers should have to offer free contraception. I'm not particularly interested in a discussion of contraception. I'm interested in where the federal government gets from the Constitution the right to unilaterally mandate that action.
I think you'd find that were we to sit and discuss contraception in general, there would be little to no disagreement between us.
JimHeim 3 months ago
geoff, the first amendment says that the federal government can pass no laws with respect to religion. If Church run corporations can convince their employees to eschew contraception, good for them. If their employees exercise their right to choose their own destiny, they should be allowed to. The law is clear and unambiguous on this. Your side is going to lose this fight, big time. Say hi to Obama's second term.
JimHeim 3 months ago
Marriage in this country is not a religious institution; it's a civil contract which confers government benefits. If churches want to hold religious rite associated with these civil contracts, that is their right. But the government part of the deal must be respected. And the government part must be extended to all who otherwise qualify. Because, unlike religious rites, government-mandated rights must be equally available to all. It's called liberty and is supposed to be an American tradition.
Bigguy 3 months ago
Yeah!
geoffcutler 3 months ago
Jim, your last, if I understand it correctly, I agree with. All I'm concerned with is how government gets there.
Yukonjohn 3 months ago
IMHO, anybody should be able to marry anybody. Call it a civil union, or call it whatever, but any two people should be able to have a union with the person that they love, and they should be awarded all rights and priviledges of that union. It does not seem so difficult to me. We are all equal in the sight of the law.
JimHeim 3 months ago
I am still left wondering who gave government the right to meddle in such personal decisions. It is amazing to see conservatives complain about government over reach yet have no problem with the state involving itself in the most intimate matters of our lives.