“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Seems pretty trivial, and protected by the Constitution, to “cook up” the right to privacy.

No?

They seem to be the order of the day. First, the leak by Central Intelligence Agency analyst Mary McCarthy that led to her being fired. If it doesn’t run afoul of whistleblower protection statutes, McCarthy’s dismissal seems pretty straightforward: s…

Why has execution of minors suddenly become cruel? It is not a new concept… if it were cruel, why wasn’t such cruelty challenged before it became “usual”? Capital punishment has arguably become more humane in the last few years. We don’t hang people, and the electric chair is giving way to the numb death of lethal injection.

Narrowminded textualism is the only method of interpretation that limits judges. If given freedom to invent rights not guaranteed by the Constitution, where does that stop? If you can cook up a right to privacy, you can use that to do just about anything.

Yeah, the courts have a responsibility to review the legislature, but they cannot do so only based on personal politics. Their job is to see if a law conflicts with the Constitution. With abortion, for example, there is nothing in the Constitution to guarantee it as a right, nor is there anything to deny it as a possibility. The Constitution is silent, so the legislature can say what they like on the matter. But now that abortion has been deemed a “right,” the legislature can have no say. The will of the people is silenced because at least 5 out of 9 guys in black robes decided abortion should not only be legal, but it should be illegal to limit it.

Abortion laws and sodomy laws are well within the Supreme Court’s domain if there is confusion in the lower courts about whether the laws are in conflict with the constitution.

Yes… and the Court’s response should be “this is not a constitutional matter, we won’t take the case.”

Now, I’m a libertarian, so I’m very much in favor of personal freedoms. If sodomy is your thing, go for it. Consenting adults, no harm to anyone else… have a blast. But as much as I think that, I can’t get around the fact that there is no “private sexual freedoms” amendment. Thus, I cannot claim that laws against private sexual freedoms are unconstitutional, even though I think they are wrong.

The constitution is a “living document” in this way: if you don’t like it, you can amend it. This was done to give women the right to vote. The answer isn’t to ignore the constitution, or to pretend it says something that it doesn’t.

the constitution is an imperfect document anyway.

So let’s make it perfect! If you give up on it, you’re only going to perpetuate a system in which courts can act without restriction, imposing their will based on “evolving standards,” or… what their Alphabits said that morning. You may like it when Justices ignore the Constitution and do something you think is right, but if you applaud a flagrant disregard for the Constitution, you waive any right to complain when the Constitution is ignored and you suffer as a consequence.

Denying states the right to execute minors, on the other hand, was a direct reading of the constitution: the admonishment against cruel and unusual punishment (the argument is that standards have changed over the years and nowadays the state killing someone who’s 17 is cruel and unusual).

My point is that there are many theories of constitutional interpretation, and absolutism and original intent and the like are just one of a few different views (such as judicial restraint, or restraining the judiciary when it comes to commerce but being harsh on a law when it restrains individual rights). The courts have a responsibility to review the legislature, and the constitution is an imperfect document anyway. Narrowminded textualism is Scalia’s preference, not everyone else’s. Abortion laws and sodomy laws are well within the Supreme Court’s domain if there is confusion in the lower courts about whether the laws are in conflict with the constitution.