How James Madison can defeat Rudy Giuliani

One of the problems with judicial activism is that any right invented by the Supreme Court can be uninvented by the Supreme Court.

Take privacy rights.

The Republican presidential candidates are trying to.

If you watched the debate last night on CNN, you may have noticed the bland and calm manner in which the GOP presidential candidates discussed the necessity of overturning the 1973 Roe v. Wade decision, so the states can decide for themselves what criminal penalties to impose on women and their doctors.

You may not feel so bland and calm about that.

You are not alone.

But if you want to protect the constitutional right to privacy, you will first have to recognize that there is no constitutional right to privacy. It was imagined into the Constitution by the U.S. Supreme Court in 1965, and it can be imagined right out again if the justices get a case that persuades any five of them to reconsider the issue.

What we need, if we want to secure the right to privacy, is a constitutional amendment.

Ask yourself this: Why would the retirement of Justice John Paul Stevens or Justice Ruth Bader Ginsburg threaten a woman's right to choose, but not her right to vote?

Here's the answer: Because a woman's right to vote is written in the plain language of the Constitution, put there by the 19th Amendment in 1920. A woman's right to choose, also known as the right to privacy in the first trimester of pregnancy, was invented by a divided Supreme Court in 1973.

As long as we allow Supreme Court decisions to substitute for constitutional amendments, our rights will be at risk every time a Supreme Court justice leaves the bench.

It's not just privacy that's at risk, either. The Constitution has never been amended to prohibit discrimination on the basis of race or gender. Modern scholars insist that the framers of the post-Civil War Fourteenth Amendment intended to prohibit racial discrimination, but they will have to explain why language that would have done so was cut out of the Civil Rights Bill of 1866 and killed in the subcommittee that was drafting the Fourteenth Amendment.

We should correct that ugly error and amend the Constitution to prohibit race and gender discrimination.

Perhaps you're saying, "Oh, that's not necessary." Fine. Have it your own way.

But remember that you said that the next time there's a vacancy on the U.S. Supreme Court, when there's panic in the air because the president promised to appoint judges who will strictly interpret the Constitution.

Remember it when you see sober and respected people and Senator Ted Kennedy openly warning that the next Supreme Court justice could be the vote that rolls back fifty years of progress on civil rights and women's rights.

Remember it when the presidential campaign turns to the issue of judicial nominations, and you hear scary warnings that some of the most important issues in American life are going to be decided by the vote of the Supreme Court justice who is appointed by the president who got the job because he won over five more Iowa farmers than the other guys and then eked out a victory in Ohio.

Remember that this is not the deal we signed. The framers of the Constitution deliberately excluded the judiciary from policymaking.

Instead of searching for test cases to bring to the Supreme Court and hoping for decisions that will secure our rights, we should amend the Constitution, the way George Washington and James Madison told us to.

Perhaps this kind of thinking has gone out of style.

Well, if Republicans succeed in getting Roe v. Wade overturned, the fashions may change in a hurry.



Copyright 2007


Source note: For details and citations on the 1965 and 1973 privacy decisions, and for more information on the Civil Rights Bill of 1866 and the drafting of the Fourteenth Amendment, please see the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing," at http://www.ExtremeInk.com/appendix.htm.

Editor's note: You may be interested in the essay, "Why There is No Constitutional Right to Privacy, and How to Get One," and "A Retirement Plan for Sandra Day O'Connor." You might also like to read the earlier post, "The cat, the bag, and Justice Scalia."

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