I think you're contradicting yourself on this one. Or maybe just thinking it through as you post.
It is a bit of thinking through as I post, but I don't see a contradiction. I don't want the courts to make the rules but if they are going to make the rules its better that they be clear rules. Clear doesn't necessarily mean sweeping, they could be minimal, but the minimal area they do cover should be clear.
You would agree, wouldn't you, that, if the penumbra were, indeed, part of the constitution, as I believe, then ruling a law unconstitutional is not judicial activism?
Yes, I can agree to that.
Can you agree that even if what has been declares as the penumbra is part of the constitution, that the very idea of the penumbra, or of the "living constitution" make judicial activism more likely? (Not just reading things in to the constitution that I wouldn't see in it, or that someone like Robert Bork wouldn't see in it, but things that you wouldn't see in it either.)
...apparently liberty is not as high up in your hierarchy as in mine.
I don't think I agree with that statement. Liberty might possibly be first on my list, depending on what exactly is put on the list and how you define these values. For example wisdom might not be on my list at all. I consider it very important but not a value that I would put in this ranking. It is rather an attribute that helps you pick good values or helps you find the best way to forward important values with minimal harm or infringement against other values. To the extent it is a value itself I'm not sure I would put it ahead of liberty. I think someone should normally be free to act foolishly.
I would put liberty ahead of respect for tradition, ahead of democracy, ahead of just about anything. About the only value that might be up there with liberty is respect for the rule of law, and it isn't nearly as intrinsically important as liberty, but rather it gains its importance by being something that is important, even necessary to achieve and maintain other values including liberty, stability, peace, ect. But if push came to shove I would generally value liberty higher. If a nasty dictatorship actually did respect some solid body of law, rather than ignoring law or just using it as a tool to implement its whims (I know its odd an unlikely but lets just assume it happened) and I had the power to overthrow the dictatorship without causing an extreme and undo level of bloodshed and suffering and disruption of peoples lives, than I would do so, even if it violates the law in that country, and perhaps some form of "international law" as well.
Its possible that even if we would both place liberty at or near the top, that you would place lesser values at a greater remove from liberty than I would, but even if this is true (and I'm not sure it is), I don't think that our primary difference is in how we value liberty. It is possible that we don't define liberty in exactly the same way, but if this is the case the overlap in our definitions would be almost total so any differences would probably only be at the margin, but that margin might account for some of our different world view and opinion. Specifically with abortion, our difference would be who liberty applies too. I would include the right to live to be part of liberty (or if it is considered as a separate value it would be up there with liberty in my hierarchy). You might agree with that idea, but you would probably disagree with the idea that the liberty of the fetus is a meaningful concept. I believe you think I care less about liberty because of my pro-life stance, but in a very real sense my pro-life stance is connected with, even part of my valuing liberty.
Tim |
