Sadly, I am doing work on a Saturday night with two weeks to go in the clerkship. In the background, I am listening to Pastor Rick Warren attempt to grill the candidates on various "hot button issues" at the Saddleback Civil Forum. See Obama and McCain Try to Woo Conservative Voters at Forum; McCain and Obama cite moral failures; O.C. Matchup Between Obama and McCain is a Prelude to Debates. There will be plenty of news on this that will continue to monopolize the news.
My point is with this, and this is a technical legal point. Maybe someone can enlighten me on how to reconcile it. The debate over the "right to privacy" appears to have settled into some sort of acceptance that it is part of the penumbra of rights contained in the bill of rights. From a strict constructionist perspective, however, the "right to privacy" is not in the constitution. So, how can you be for both without being fundamentally at odds?
I haven't given this much thought, and perhaps they can be reconciled, but this always seems to come up in the judicial nomination debate. I remain convinced that the general american public, and probably a significant portion of the legal profession, has no understanding of the politics that goes into this process. Nor do I think that most people (lawyers included) actually understand the nuances of strict constructionism versus the constitution as a "living, breathing document." In the end, the debate is pretty academic, but I cringe whenever I hear a non-lawyer (such as John McCain) or even a lawyer (such as Barack Obama) attempt to dumb it down for the general public.
Is there a solution to my legal conundrum or is it simply one for the academics and pundits to debate over?
Saturday, August 16, 2008
Right to privacy and strict constructionism
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2 comments:
you can't, really. Heck, one of the attacks on Justice Roberts when he was nominated was that he once made a statement to the effect that "there is no such thing as a right to privacy" under the Constitution.
The problem really isn't strict v. loose construction, it's abortion. When liberals somehow located/made up the right to abortion out of the right to privacy, it sent shock waves through the legal establishment. Had liberals not gone that far, many strict constructionists would be searching harder for ways to use the 4th Amendment to get the feds government out of their lives.
But with abortion, suddenly, a third life was implicated. By doing so, liberals insured that the 4th Amendment would become so limited in the coming years that right to privacy would eventually be overturned.
I find it interesting how many anti-federalist positions have become the majority approach. I agree that once the government waded into the abortion waters, it created a bigger issue. I find it more telling, however, when the court hints at where Congress's power in this area is.
Regardless, however, I'm not familiar enough with Roe or its progeny to speak intelligently on it and respond, but I have heard that position articulated before. All I can say is that I have attempted to keep the Fourth Amendment as neutral as possible during my time in the appellate system. Thanks for your comments.
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