What is "judicial over-reach"?

Cordelier said:

Didn't this argument pretty much go out the window with the ratification of the 14th Amendment, though?

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." If the Bill of Rights enumerates privileges and immunities that can't be denied to us by the Federal Government, then how can a State Government then go about denying those same privileges and immunities without blatantly disregarding the language of the 14th Amendment?

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Apparently many justices (over the period of many decades) finally agreed that this is the case.

But it doesn't appear that it was obvious to them for a very long time. So I still am not sure that it's not the Supreme Court making it up as they went.


But at least you guys pointed out something other than the Supremacy Clause.

Amelia said:

Apparently many justices (over the period of many decades) finally agreed that this is the case.

But it doesn't appear that it was obvious to them for a very long time. So I still am not sure that it's not the Supreme Court making it up as they went.


But at least you guys pointed out something other than the Supremacy Clause.

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Well, to be fair, Judges can only rule on the cases that come before them, so unless and until a Constitutionally guaranteed right is asserted against State law, a Judge isn't going to be able to make a decision one way or the other. Also, incorporation isn't a fait accompli... there are Constitutional rights that the Supreme Court has decided aren't applicable to States, such as the 5th Amendment's grand jury indictment guarantee (Hurtado v. California, 110 US 516 (1884)).

Cordelier said:

I like Goldberg's concurrence in Griswold. It seems to me that a literal reading of the 9th Amendment makes any charges of "overreach" in the judicial discovery of new rights irrelevant. I have yet to see any self-proclaimed "strict constructionist" make a coherent argument as to how they would go about defining a 9th Amendment unenumerated right.

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I don’t think there was a wrong or right way to rule on this. I understood and appreciated Stewart’s dissent:

It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect he standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.

Blue Dog said:

I don’t think there was a wrong or right way to rule on this. I understood and appreciated Stewart’s dissent:

It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect he standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.

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In an ideal world, though, States wouldn't pass laws that violated fundamental personal rights. But obviously we don't live in an ideal world. So when States do pass such unjust laws - as Connecticut did with contraception, or the South did with Jim Crow... is it not the responsibility of the Courts to step in and strike down those laws?

Cordelier said:

In an ideal world, though, States wouldn't pass laws that violated fundamental personal rights. But obviously we don't live in an ideal world. So when States do pass such unjust laws - as Connecticut did with contraception, or the South did with Jim Crow... is it not the responsibility of the Courts to step in and strike down those laws?

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That’s why I said there isn’t a wrong answer here. We have two different scenarios. In the case in Connecticut, nothing stopped the people of that state from pushing their reps to remove such a inane law. However, in the case of a Jim Crow law it is necessary for the courts to step in because it is blatantly unconstitutional. The problem is agreeing on which should apply to a given case.

Blue Dog said:

That’s why I said there isn’t a wrong answer here. We have two different scenarios. In the case in Connecticut, nothing stopped the people of that state from pushing their reps to remove such a inane law. However, in the case of a Jim Crow law it is necessary for the courts to step in because it is blatantly unconstitutional. The problem is agreeing on which should apply to a given case.

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Two different scenarios, but the same principle applies... when a State has a law that violates a fundamental personal right, then it is the responsibility of the Courts to strike down that law. To do otherwise is to submit to the tyranny of the majority. You suggest that with Jim Crow laws it was a different matter because they were "blatantly unconstitutional", but I suggest that if a 9th Amendment right is found to exist by the Courts, then it's violation is no less "blatantly unconstitutional" than the violation of an enumerated right would be. To treat unenumerated rights as lesser rights simply because they are not spelled out in the Constitution is to disparage them, which in itself would be contrary to the text of the 9th Amendment.

Cordelier said:

Two different scenarios, but the same principle applies... when a State has a law that violates a fundamental personal right, then it is the responsibility of the Courts to strike down that law. To do otherwise is to submit to the tyranny of the majority. You suggest that with Jim Crow laws it was a different matter because they were "blatantly unconstitutional", but I suggest that if a 9th Amendment right is found to exist by the Courts, then it's violation is no less "blatantly unconstitutional" than the violation of an enumerated right would be. To treat unenumerated rights as lesser rights simply because they are not spelled out in the Constitution is to disparage them, which in itself would be contrary to the text of the 9th Amendment.

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And I’m not disputing what you are saying. However, it’s still a matter of interpretation. Dumb laws are not necessarily under the realm of tyranny of the majority nor are they necessarily unconstitutional. That why I do not think the Griswold dissenting opinion was incorrect. That is why defining what constitutes “overreach” is problematic as well as subjective. To further illustrate the point I’m making I’ll also mention a part Justice Blacks dissent in Griswold:

I repeat, so as not to be misunderstood, that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country.

Blue Dog said:

And I’m not disputing what you are saying. However, it’s still a matter of interpretation. Dumb laws are not necessarily under the realm of tyranny of the majority nor are they necessarily unconstitutional. That why I do not think the Griswold dissenting opinion was incorrect. That is why defining what constitutes “overreach” is problematic as well as subjective. To further illustrate the point I’m making I’ll also mention a part Justice Blacks dissent in Griswold:

I repeat, so as not to be misunderstood, that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country.

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Essentially, though, doesn't that just bring us full circle to the point I made earlier? 9th Amendment unenumerated rights do exist, and that they carry the same weight as any other in the Bill of Rights... so how do you reconcile those facts with the views of Stewart and Black? Isn't it incumbent on anyone advocating a strict constructionist interpretation to define exactly how they'd go about discovering a 9th Amendment right? As I see it, the fatal flaw in the Griswold dissent is that they never make the argument why a constitutional right to privacy doesn't meet the criteria for becoming a 9th Amendment unenumerated right. Say what you will about Douglas' "penumbras" and "emanations" or Goldberg's 9th Amendment argument... but at least they lay out a formula for discovering unenumerated rights. All Stewart and Black essentially seem to say is that the right to privacy isn't mentioned in the Constitution, and so the Courts shouldn't have the power to conjure it into existence. Yet this doesn't address the 9th Amendment argument at all. There's no "squaring of the circle" there. They didn't adequately explain why a constitutional Right to Privacy isn't inferred by the 9th Amendment.

Cordelier said:

Essentially, though, doesn't that just bring us full circle to the point I made earlier? 9th Amendment unenumerated rights do exist, and that they carry the same weight as any other in the Bill of Rights... so how do you reconcile those facts with the views of Stewart and Black? Isn't it incumbent on anyone advocating a strict constructionist interpretation to define exactly how they'd go about discovering a 9th Amendment right? As I see it, the fatal flaw in the Griswold dissent is that they never make the argument why a constitutional right to privacy doesn't meet the criteria for becoming a 9th Amendment unenumerated right. Say what you will about Douglas' "penumbras" and "emanations" or Goldberg's 9th Amendment argument... but at least they lay out a formula for discovering unenumerated rights. All Stewart and Black essentially seem to say is that the right to privacy isn't mentioned in the Constitution, and so the Courts shouldn't have the power to conjure it into existence. Yet this doesn't address the 9th Amendment argument at all. There's no "squaring of the circle" there. They didn't adequately explain why a constitutional Right to Privacy isn't inferred by the 9th Amendment.

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Agreed. However, Justice Goldbergs opinion about the ninth doesn’t make it clear either:

Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.


https://constitution.findlaw.com/amendment9.html

Blue Dog said:

Agreed. However, Justice Goldbergs opinion about the ninth doesn’t make it clear either:

Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.


https://constitution.findlaw.com/amendment9.html

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Goldberg addressed the big picture... Douglas was the one who handled the details.

For myself, I'm more inclined to take what I call the "Open Range" view.... back before the white man settled the plains, it was lawless and untamed. Bison herds roamed from horizon to horizon. There were no fences... everywhere was open to travel. But then the white man came and settled in and claimed the land. He put up fences and gave property ownership. It gave people clear title to their section... but it also put limits on that title. That's essentially what the Bill of Rights did - if you enumerate a right, it gives you domain over it... but if a right can be defined, it can also be limited. No right laid out in the Constitution is an absolute... all of them have their limits. Good fences make for good neighbors and all of that.

But the fences didn't create the land. The land was there before the fences. The land is unalienable.

What the 9th Amendment does is acknowledge that there is still open range out there - new frontiers that haven't been explored and settled and parceled out.

We were all created equal... and as such, we are born with certain unalienable rights - among which are life, liberty and the pursuit of happiness. That's our heritage, no less than the western frontier was back in the day. It's my belief that all rights that do not intrude on the rights of others are open to us... unless or until the Government can make a convincing case that they should not be. When an individual asserts his or her perceived rights - and marks their claim on the open range - I believe that the burden of proof is justly on the Government to prove that that right doesn't exist, and not on the individual to justify their claim.

The question isn't about judicial overreach.... it's about legislative overreach. If the Constitution hasn't surveyed the land yet, then it ought to be fair game for whoever wants to settle there.

Effectively what judges do when they look into a law validity is legislating. They are deeming it lawful or not- which is a form of legislating. Which isnt bad; that is hows its been since 1804 or whatnot when Marshall basically set down the basic powers of the Supreme Court.