The Supreme Court should not make law but decide it on what the constitution says. That´s what people often say. Seems reasonable and to an extent I agree with that.
One problem: what does it say? I mean if it was always obvious and anyone could get the plain meaning we would not need Supreme Court justices, at least we would not need them to interpret the Constitution.
Saying that the Constitution just means what is says in almost like a line I liked in the Movie Lonesome Dove. Captain Call opines that his sidekick Augustus has no idea what the Latin slogan (I believe Augustus thinks it’s Greek, and it is to him) on the back of their freight wagon means.
“It’s just a motto; it says itself”, retorts Augustus. Well our Constitution is not just a motto but it does not always just say itself as Augustus put it.
People can certainly bend or stretch what is seems to say, and in one case in particular, Roe v Wade, the court even found something that was not there, that gives a woman a right to an abortion — a penumbra.
And here I go back in time, that is I attempt to make a clarification or slight correction in what I already wrote many days ago: That “penumbra” I mentioned was actually from another case (or cases). But consulting Wikipedia I got this:
The theory of rights in a penumbra (and this now is me trying to explain), not specifically mentioned in the Constitution or its amendments, but implied, was used to justify abortion in certain cases as falling within the rights of privacy, such as a woman deciding when to have a child by using birth control in the Griswold case or abortion in the Roe v Wade case.
All of this can get extremely convoluted I think. I plan to write more about it later, if for no other reason than to remind myself what it all means.
I’ll just say that Supreme Court justices have their work cut out for them because the very nature of their job is to decipher how to apply the Constitution, which is only a framework, to specific laws. You cannot help but run into things that are no spelled out. But reading into the Constitution things that are not there (or at least are not there is plain sight) seems fraught with danger.
I won’t go into the reasoning on that one, even if I think I might know it. I’m not anti-Roe v. Wade but it seems to me the high court could have come up with more solid reasoning and still have come out with the same result, often referred to somewhat euphemistically as “a women’s right to choose”.
Be that as it may, the court made decision and set precedent with it. Now though, with a vacancy being open, President Trump will appoint someone who will ultimately cast the deciding vote that might overturn Roe v. Wade.
But as often is the case here, I have gotten off the point. I am not trying to argue Roe v. Wade. I’m just saying that the Constitution does not always read clear or at least those learned in the law don’t seem to make it look like that.
So the liberals on the court had Roe v. Wade, and Brown vs. the Board of Education before that, along with other landmark cases.
Well the conservatives, strict constructionists they may be, somehow found that the Constitution considers corporations people with the same status and rights as humans. So they had their turn at reading something I don’t see as plainly there.
(See Citizens United v. Federal Election Commission)
Ironically, the 14th Amendment, passed to guarantee the rights of all freed slaves in all states, has been used more over the years to protect corporations. A corporation is an artificial person. It is a business arrangement that allows people to run businesses separate from the own personal finances and thus avoid liability to their own personal holdings.
Over the years, the 14th Amendment I think has been used as much or more to secure rights of artificial people than real people it seemed it was intended for.
Seems to me a strict constructionist would not allow that. But we know different.
Baloney with plain interpretation. In reality justices often interpret according to political ideology, whether on the right tor left. Law and politics are not separate.