Thursday, November 29, 2007

Judicial Conservatives

Hey all,

I debated with myself long and hard about making this post and in the end decided to. I want to preface it by saying that I am definitely not the most informed person about these matters and also that I ask you to read it impartially. When I was thinking about it, it was too easy to let my morals and emotions get tied into the example rather than the greater idea. I hope you understand.

I was thinking about the issue of judicial conservatism in Roe v. Wade. It is easy to say that most conservatives are pro-life but I am talking about judicial conservatism, not moral conservatism though they frequently go hand in hand but do not have to. For those of you who do not know a judicial conservative is, it is one who believes in a strict reading of the Constitution. They believe that it is not the given role of the Supreme Court in the Constitution to interpret the Constitution but rather to make rulings on only cases which pertain to it. They follow strictly to what the founding fathers set out and do not feel that the courts should be able to create new rights. Judge Antonin Scalia is a prominent judicial conservative. There are clearly ways to amend the Constitution if we wanted to include those rights in it but until then they believe that the Supreme Court should only rule on those cases which are directly related to the Constitution and not interpret it to create new laws.

In that I was wondering if the judges were over stepping their bounds by "legislating from the bench" since there is no specific mention of the right to abortions in the Constitution. To expand that a little more I guess I will open it to almost all cases where judges set precedents by interpreting the Constitution. The Supreme Court has been interpreting the Constitution since Marbury v. Madison even though there is no provision for judicial review in the Constitution but that does not make it right, in fact it is judicial review giving the right to judicial review which seems a little like a catch 22. Roe v. Wade under a judicial conservative view should never have gone to the Supreme Court since there is no right to abortions in the Constitution and interpretations of other rights had to be made to allow it to be presented. Also, it set precedents about rights which the Supreme Court does not in the strict sense of the Constitution have the right to do. Hypothetical situations are dangerous in talking about history but there is the possibility that abortions would be far less a hot button topic if the ruling had never been made. Many states at the time were in the process of legalizing abortions so we will never know what would have happened if the Supreme Court, a group of unelected officials who serve for life, hadn't made a judgment beyond their given powers. While morally I am for a woman's right to choose, it seems to me at the moment that the ruling was illegal. This goes not only for Roe v. Wade but for many, many other cases in which the Supreme Court has made rulings on perceived rights rather than the rights given in the Constitution. It is a very short and sweet document but it does clearly outline the rights given. Judicial liberals see it as a living document which needs to advance with the times but that seemingly was not the point of the founding fathers. They wanted to outline basic rights and let the system take care of the rest.

As you can see this could be a hot issue which is why I was hesitant to post some of my feelings on it so I tried to be as general as possible. I do not want to start a moral debate with this but rather a debate about how the Constitution should be viewed and used by the Supreme Court. As a last point I would like to point out that the last two amendments to the Constitution were, as I found in my limited research so I could be wrong, in 1971 changing the voting age to 18 and in 1992 on congressional pay increases. While there could have been amendments to the Constitution, the set out way to create new rights, instead the Supreme Court used its rulings to do so. The only mentions of the Supreme Court in the Constitution are "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. " and "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " ( There are a few other mentions which don't say much to the power or role of the Supreme Court but rather to the appointment of the justices and Congress' ability to make lower tribunals.

-Peter Lubershane

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