Wednesday, July 15, 2009

Settled Law or Judicial Fabrication?

Supreme Court nominee Sonia Sotomayor said on Tuesday that she considers the question of abortion rights to be "settled law" and that there is a constitutional right to privacy. See here. Here is where we enter the murky world of judicial fabrication. In its infamous Roe v. Wade decision, the Supreme Court said that, "The Constitution does not explicitly mention any right to privacy...This right of privacy [which the Court said is implied, my note] whether it be founded in the Fourteenth Amendment's concept of personal the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (For full text of Roe v. Wade go here). The paragraph cited may be found on page 5.

Now astute readers will note how the Court stated clearly that there is no explicit mention of "any right to privacy." Nevertheless, the Court insisted that there is an implied right to privacy, which they couldn't locate with any certainty - unsure whether it may be found in the Ninth or Fourteenth Amendment - and that this implied and hard-to-locate "right to privacy" was nevertheless "broad enough to encompass a woman's decision whether or not to terminate her pregnancy" - in other words, whether or not to have her child murdered.

If that's what Sonia Sotomayor calls "settled law," God help her. And us.
Related reading here.


Ellen Wironken said...

Enroute to totalitarianism and a world-wide culture of death:

Anonymous said...

From Wikipedia:

Plessy v. Ferguson, 163 U.S. 537 (1896), is a landmark U.S. Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of racial segregation even in public accommodations (particularly railroads), under the doctrine of "separate but equal" [which the Constitution does not explicitly mention].

The decision was handed down by a vote of 7 to 1, with the majority opinion written by Justice Henry Billings Brown and the dissent written by Justice John Marshall Harlan. Justice David Josiah Brewer did not participate in the decision. "Separate but equal" remained standard doctrine [i.e., "settled law"] in U.S. law until its repudiation in the [unanimous 9-0] 1954 Supreme Court decision Brown v. Board of Education.

Paul Anthony Melanson said...

In Roe v. Wade, and many other cases decided by the Supreme Court, we have not constitutional law but judicial fabrication and a judicial usurpation of power which has, in the words of Robert H. Bork, "weakened, indeed severely damaged, the constitutional structure of the nation."

Lino Graglia, professor of law at the University of Texas, has said, "the thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum." (Lino Graglia, "It's Not Constitutionalism, It's Judicial Activism," Harvard Journal of Law & Public Policy, Winter 1996, pp. 293, 298).

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