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Politics : Politics for Pros- moderated

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To: Lane3 who wrote (115871)	5/24/2005 2:43:20 PM
From: TimF	Read Replies (1) of 793798

I think they are guaranteed thus it's not judicial activism to assert them. Which is of course the point were we disagree. I not only think that the so called "penumbra" of the constitution is not actually part of the constitution, I think its dangerous to consider it to be so. It can help liberty but it can also hurt it, and while liberty is one of my most important political values it is not the only one. Such decisions do harm to the rule of law, another important value and one that often is a crucial support for liberty. If the law is any vague concept that appears to be connected to the values of the constitution, or previous legal decisions the law becomes whatever judges say it is. Take Roe v Wade. The court didn't just strike down the law, which IMO it should have. It went on to impose this trimester thing. I call that part of it activism. It would have been better for the court to say that there's a right to privacy and states can't ban abortions altogether and then let the states figure out what abortion restrictions there could and should be. That might be the lesser part of its activism. OTOH if they didn't make up some framework for when the states could regulate abortion (even to just say that it can't be regulated at all), than you would have had court case after court case to try to establish the limits. You had a bit of that anyway, but not as much as it could have been. It could be argued that if the courts are really going to make the rules that they should just go ahead and do so in order for things to be clear. Of course the rule that it laid down could be less restrictive than the system in Roe vs. Wade, it could allow for more state regulation as long as there is no ban but it still would have been the courts making the decision. I guess in the end I probably agree with you that if abortion was going to be elevated to a constitutional right, it still doesn't follow that some trimester system is actually mandated by the constitution and in that sense imposing it was clearly judicial activism. Tim

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