Conservatives Against Judicial Conservatism

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The most liberal of the courts of appeals in the U.S. would almost certainly be the 9th Circuit. Conservatives are often accusing them of inventing rights that the Constitution has nothing to say about and then calling them constitutional rights. For a change, they've issued an opinion that originalists and strict constructionists could be proud of, but some conservatives aren't exactly happy about the decision. I guess some conservatives are more principled than others. So which penumbras of which amendments are supposed to contain the right not to have people pronounce certain words around your kids?

Update: I thought of a term for this: liberal judicial inactivism!

6 Comments

Amazing. The court couldn't find anywhere in the constitution that parents have the right to raise their own children. Meanwhile, they didn't even to think to ask whether the government had any right to interfere.

At least, they could have found an informed consent in common law.

I've never noticed anything in the Constitution about what rights parents have with respect to their children. I think they're on very good ground here with respect to conservative judicial philosophies. Of course, on their own views there should have been plenty of room to find such a right somewhere in the changing views of our culture, of other cultures, or of things barely hinted at in the Constitution that precedent cases have expanded. The inconsistency of method appears on both sides on this one.

Well, there is the 9th ammendment, which would seem to at least require a good argument for why a traditional understanding of parents rights in regards to raising their children should be suddenly denied.

Honestly, this ruling will probably get overturned pretty easily in the supreme court.

The 9th Amendment doesn't list any particular rights. It just says that the fact that the Constitution doesn't mention something doesn't mean we can't later come along and make a right clear. I don't see how that justifies judges doing such a thing when the Constitution makes it clear exactly how that can be done -- in state constitutions and in constitutional admendments. Even those who disagree have to admit that this is the standard originalist and strict constructionist position, so people who like that model of jurisprudence should not be doing this.

The ruling might well get overturned, but it shouldn't get overturned on the basis of the argument these parents were making, not if originalist or strict constructionist criteria are being used.

The 9th amendment is not to the point. The purpose of the 9th amendment is to point out that the Bill of Rights is not a GRANT of rights where the government gives them to the people, but an ENUMERATION of rights that people already had to begin with (the drafters of the Constitution and Bill of Rights were natural law theorists). The point is in fact the TENTH amendment. The purpose of the tenth amendment is to point out that the Constitution is in fact a list of things the federal government is allowed to do and anything not on the list (such as education) the government may not do. The 14th amendment extends the Bill of Rights to apply to the states, but not, for instance, Article I Sect. 8, which enumerates the powers of Congress. States have many more powers, and these may include the operation of public schools, depending on the state's Constitution (though the federal department of education is clearly unconstitutional - whether it should be permitted by the Constitution is a wholly separate question). Clearly, if parents send their children to the public school system they entrust the education of their children to the system. Forcing them to pay for the system, even if they don't use it, violates their libertarian rights, but the unqualified right of private property is not in the Constitution (only the right to protection against "unreasonable search and seizure"). If the parents don't like the way decisions about things like this are made in the public school system, they shouldn't put their kids in it. This is not a violation of the Constitution.

By the way, while I'm here and since it's relevant, shameless plug for my recent post on the meaning of the term "judicial activism" at http://blog.kennypearce.net/archives/000130.html. :)

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