Saturday, September 17, 2005

Constitutional Rights

Keep It Simple Citizen

During senate hearings on his nomination for chief justice of the Supreme Court, a question from Senator Joseph Biden led John Roberts to make a very appropriate reply. He pointed out that federal judges apply the law as it is, not in accordance with campaign promises made in order to solicit support for their confirmation. That is probably not what the pressure groups making the most enthusiastic noise about Roberts's nomination want to hear. They have always sought judges who would keep promises to themselves, rather than apply the law as it is. But it speaks well of Judge Roberts.

Our constitutional rights are sacred, and fundamental to our existence as a nation. These rights would be a lot easier to preserve if we could keep them simple. Judges do not need to wrap them up in complex language. Nor do the federal courts need to paint them in broad sweeping language. American citizens and residents would be much safer with a concise application of the obvious. Oratory may be pleasing to the winning party, but it does not make for good precedent to rely on in future cases. A few examples:

There is no constitutional right to abortion. Nor does the constitution confer a right to commit homosexual acts.

There IS a constitutional right of the people "to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Justice Louis Brandeis expounded in 1928 that the Framers of the Constitution "conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

We each have a well-established right to make our own medical decisions, without the government telling us what treatment we should or should not take. That is part of being secure in our persons. There are, of course, "reasonable" searches and seizures of our persons. If, in my natural state, I am inclined to smash the skull of any other person who comes my way, I may be seized, restrained, possibly even medicated, without my consent.

The Supreme Court ruling in Roe v. Wade simply established that during the first trimester of pregnancy, it is not reasonable for the state to seize the person of a pregnant woman, either to require or forbid her to choose abortion. The line of "reasonable" government coercion had to be drawn somewhere. That is where the court drew it. During the second trimester, state regulation is more reasonable. During the third trimester, state intervention, or prohibition, has only one constitutional limit: the state may not REQUIRE a woman whose life is in danger to sacrifice her own life in order to save her baby.

It is no small matter that this right equally forbids the state to require a woman to abort her pregnancy. If it is none of the government's business, it is none of the government's business. Think about that, if you hold any fear that some future paternalistic regime might decree that women deemed unfit must submit to abortion, or that fetuses deemed unfit must be aborted. That would be unconstitutional, wouldn't it?

Constitutional rights are not about what is the right, or best, or most prudent choice. Constitutional rights are about who should hold power to make a decision: the individual, or the state? We all know that either one is capable of making mistakes, and both have done so. We as a people have surrendered certain powers to the state, by written constitutions, and reserved others from the reach of any branch of government. That always arouses the anger of whoever wants to use the power of the state to accomplish some purpose, when the state has no constitutional power to act.

We each have a well-established right to be secure in our homes. In Lawrence v. Texas the Supreme Court ruled that private consenting homosexual acts are not a "reasonable" purpose for the police to enter someone's private home and arrest them. It is true that Justice Kennedy's language was much broader than necessary for this simple purpose. Spare us the oratory and flourishes, a simple statement of where the constitution forbids the state to go, and what is a "reasonable search and seizure" would be sufficient. The state remains free to regulate or prohibit homosexual acts outside the privacy of the home. For that matter, the state remains free to regulate or prohibit heterosexual acts outside the privacy of the home – although probably not in lawfully rented motel rooms. The state remains free to enter a private home to suppress adult sex with a child, whether it is homosexual or heterosexual.

There is no constitutional right to serve as a troop leader in the Boy Scouts

As everyone knows, the Supreme Court rejected the lawsuit claiming such a right. It was filed by an Eagle scout who, after graduating from high school and entering college, joined a gay student organization. The constitutional principle at stake had nothing to do with whether homosexuality is or should be a crime. It had nothing to do with whether homosexuality is sinful. The jurisdiction of the Supreme court turned on one fundamental principle: the right to freedom of association. This right, like many others currently under attack, is not explicitly stated in the federal constitution.

The First Amendment. does say that "Congress shall make no law... abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble..." The Supreme Court has ruled for over a century that these rights create a right of the people to associate for any private, peaceful, lawful purpose. Neither the federal government, nor, since adoption of the Fourteenth Amendment, the state governments, may interfere in this right to association.

In the case of Boy Scouts of America v. Dale this meant that the Boy Scouts can set whatever membership standards they choose. The government may not define who is eligible, or create a "right" for an individual to join an organization that rejects them. Why not? Because "the Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people." It is not a commercial organization. It is not a public accomodation. It is a private organization.

In the earlier case of John J. Hurley and South Boston Allied War Veterans Council, v. Irish American Gay, Lesbian And Bisexual Group Of Boston, this same principle of free association meant that organizers of a traditional St. Patrick's Day parade may not be required by the government to include organizations or messages that they do not wish to include. Maybe their decision to exclude a group is wrong, but it is none of the government's business to intervene.

In neither case did the Supreme court take any position on homosexuality. Why not? Because that is not a valid issue under any clause of the constitution. Constitutional rights do not bend and vary according to the viewpoint of the parties appearing in court. A principle is a principle. It applies at all times, in all circumstances. Chief Justice Rehnquist quoted approvingly from a case that struck down criminal penalties for burning the American flag, when he wrote the decision that upheld the right of the Boy Scouts to set their own membership standards. Those who attack certain principles, because they disagree with a specific outcome, should be very cautious. Most of us find that each enduring principle serves some purpose that is very important to us.

As Judge Roberts plainly stated, the law, especially the constitution, does not change because a new justice has been elevated to the court. If the judges could keep the principles simple, it would greatly increase public respect for the court's decisions, and its role in safeguarding our republic. If the media could talk more about principles and less about the feelings of the appellants, that would increase public understanding of what a decision really means for all the rest of us.

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