Re[2]: Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)

bitbitch@magnesium.net bitbitch@magnesium.net
Wed, 5 Mar 2003 20:52:03 -0500


RT> He's had his feet cut out from under him a couple
RT> of times. I remember cheering at the news, but
RT> would have to research what the cases were. Wasn't
RT> he AG when the Supreme Court decided against the
RT> virtual porn restrictions in COPA II?

Ashcroft has been involved in three (I thought it was four) S.Ct
cases, two as the Attorney General of the US:
       AShcroft v. Free Speech Coalition, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-795
       (CPPA, where the provisions that criminalized 'virtual child porn'
       were considered overbroad and unconstitutional) and

       Ashcroft v. ACLU, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-1293#section4
       (COPA and its reliance on Community standards.  The 'Community
       STandards' provision on its own, was not judged to make the
       statute substantially broad.  This case was vacated and
       remanded, so it didn't actually decide if COPA was
       unconstitutional in this case).

       GREGORY v. ASHCROFT, 501 U.S. 452 (1991), http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=501&invol=452
       (Where a mandatory law requiring judges to retire at 70, was
       not found unconstitutional under the ADEA or the equal
       protection Clause)

So, its a 1-1-1 kinda game.  Ashcroft has a funny voice at least on
the recorded transcript of the oral argument on Gregory.
       
RT> John Hall, quoting findlaw:
>>"In this case [Griswold - jmh], both opinions seemed to concur that the 
>>fundamental right claimed and upheld was derivative of several express 
>>rights and in this case, really, the Ninth Amendment added almost nothing 
>>to the argument."

RT> I am no lawyer, but that interpretation seems
RT> prima facie contrary to the text of Goldberg's
RT> concurring opinion. Here is an excerpt of the
RT> opinion itself.

It is.  What the Ninth added was another Constitutional tendril for
privacy to draw from, at _least_ in Goldberg.  Future courts have
drastically downplayed the 9th, in favor of the 1st, the 4th and the
14th.


RT> Turpin:
>>>The Constitution is meaningless if there is no
>>>effective mechanism for its interpretation.

RT> Hall:
>>We aren't arguing that. We are arguing whether the court must consciously 
>>restrict its decisions
>>to the text and what the text meant at the time it was written ..

As John has already demonstrated (Through the point that there is no
constitutionally enumerated clause that provides for judicial review)
this is unbelievably moot.  THey play within the lines, they examine
the grey areas.  If they didn't, we wouldn't have any of the Bill of
Rights covered under the 14th, nor would we have applications such as
protections for 'fundamental rights' like marriage (Loving v. Virginia
(which allowed interracial couples to marry), child-rearing
(Meyer v. Nebraska),
racially-neutral covenants (shelley v. Kraemer) or the ability to
refuse medical treatment (Cruzan).  None of these things are enumerated.

I have yet to hear a strict constructionist argument that is willing
to forego everything we've gotten.  Sure, it'd get rid of some of the
"bad stuff"  but when folks realize that interpretation is part of the
game to get the "good stuff"  its a hard argument to keep.



RT> The Supreme Court makes significant rulings
RT> precisely in those cases where this is required.
RT> Where the explanation to date is already adequate
RT> and clear, the lower courts are expected to apply
RT> it.

Yep.  In fact this is expertly dealt with in Planned Parenthood v.
Casey, where Justice O'Connor explains the fundamental prudential
reasons for changing law.  Trust me, she was bucking this horse harder
than John even is, and the arguments are strong -- Basically, you
don't change law unless the times have fundamentally changed the facts
(such as Plessey v. Furgeson's idea of 'seperate but equal' -- the
Times had changed the state of the facts) or the ruling is in and of
itself unworkable, or legal principles have drastically changed.