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Strict Constructionism and the next prez

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While glancing at a thread on Guliani, I noticed a couple of times people mentioning with indifference or approval his commitment to “strict constructionism.” Someone even mentioned that this was the “official” legal philosophy of Objectivism. While I have no problem with this theory per se, I find it strange that Objectivist would not seek an expansion of rights by any means necessary. If I were a judge faced with the question of whether to send to jail two men for engaging in consensual sodomy, I would most certainly strike down the law (even if my legal justifications were dubious). So what if the courts are anti-democratic? The “official” Objectivist position on democracy is that it is just a means to the end of protecting rights, not an end in itself.

Does it violate the principle of “objective law”? I thought the Objectivist position was that the laws could only be “objective” if they were objectively justifiable. How would abortion restrictions be “objective”? Even if they were, how would a body of law with judicially enforced abortion rights be less “objective” than one without those restrictions.

Finally, I don’t think an “activist” judiciary violates the Rule of Law. If anything, one of the remarkable aspects of the American legal system is the way we have made an activist judiciary part of the “rule of law” rather than fearing it as a threat.

I didn’t just put this in the Elections forum (as opposed to Law) just so it would get more hits. In 2008, we should consider strongly the issue of judges, and certainly not give Guliani a pass because he says he support “strict constructionists”—as if a literal reading of the Constitution were more important than individual rights.

On a side note, I would be really excited by a Guliani v. Obama contest. In the first time in my memory we would have two candidates who display conviction, genuine intellect, and charisma, even if some of those convictions are wrong. Moreover, it would be kind of interesting to see a secular Republican running against a religious Democrat.

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Strict constructionism is a popular misnomer. The actual terms are originalism and textualism, referring to what the text of the constitution originally meant. The idea is that this meaning doesn't change over time, in contrast with evolving interpretations that enable judges to inject their personal preferences into their decision-making. Of course, in theory originalism is only as objective as the original meanings were, so it's not necessarily consistent with Objectivism per se. What is consistent, I think, is the idea that words mean things. They mean what they mean, not what a judge wishes they meant to avoid what would be (to the judge) an undesirable outcome. An "evolved" meaning isn't necessarily objective, either, and is untethered from an (at least ostensible) means of textual interpretation that ties the judges hand. But we shouldn't be fooled into thinking that either necessarily result in an objectively correct outcome. They do not.

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I believe in strict constructionism (or originalism) as a kind of dedication to the constitutional ban on ex post facto laws. The laws on the books should be the laws enforced, and only through the proper mechanisms of legislative action should the laws change. Only in that way do we guarantee the method by which our laws are produced and the predictability of enforcement. For instance, say there is a law protecting copyright for 100 years and a company depends upon this copyright. Investors invest with the confidence that the company will keep its copyright. Then a man attempts to use the content of the copyrighted material and is brought to court, and he argues that 100 years is far too long to hold a copyright. He is perhaps right about that. Should the judge, seeing the reason in this argument, then disrupt all of the investment built up around the guarantee and perhaps sink financial careers because the legislators had erected an improper law? No, the way the law should be changed is by taking it to the legislature, having it processed and debated, and a warning period granted to all who are concerned. That would give time for stock prices to fall and people to adjust. Even better than that would be to uphold thr 100-year copyrights already in existence, but begin issuing, say, 50- or 20-year copyrights instead.

Now if you want to talk about the proper structuring of the government, that's another topic. Perhaps it would be better to have our legislative authorities appointed by the president or state officials, though I don't believe that is so. But people in our society, to not live in an autocratic regime and preserve the rule of law, must uphold the laws in a predictable and determinate fashion.

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Strict constructionism is a popular misnomer. The actual terms are originalism and textualism, referring to what the text of the constitution originally meant. The idea is that this meaning doesn't change over time, in contrast with evolving interpretations that enable judges to inject their personal preferences into their decision-making. Of course, in theory originalism is only as objective as the original meanings were, so it's not necessarily consistent with Objectivism per se. What is consistent, I think, is the idea that words mean things. They mean what they mean, not what a judge wishes they meant to avoid what would be (to the judge) an undesirable outcome. An "evolved" meaning isn't necessarily objective, either, and is untethered from an (at least ostensible) means of textual interpretation that ties the judges hand. But we shouldn't be fooled into thinking that either necessarily result in an objectively correct outcome. They do not.

Actually I'm pretty sure all three terms are used, sometimes interchangeably. I agree that "words mean things," but I would inject two comments:

1. Words don't mean the same things they did 200 years ago. The Establishment Clause and Commerce Clause both mean a lot more than they used to. Why should we bound by what the Founders meant?

2. Is the supreme duty of the judiciary, especially the appealate courts and SCOTUS, to enforce what the words "mean"? Why shouldn't they use sophisticated (in both senses of the word) legal reasoning to avoid an "undesirable outcome." There was nothing in the original Constitution prohibiting slavery, but that doesn't mean the Dred Scott case shouldn't have been decided differently. The reasoning of Roe is a stretch, but I wouldn't favor its reversal by Scalia clones.

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Saying that it is the official legal philosophy of Objectivism is plainly in error. On the other hand, "by any means possible" would also not be consistent with Objectivist principles. For example, faking a terrorist attack on the US might stir up public sentiment against a rogue regime which could lead to the destruction of a dictatorship and the expansion of man's exercise of his rights, but that would not be a proper means of expanding rights.

The central issue pertains to your parenthetical -- "even if my legal justifications were dubious". There are two approaches to bad laws, redefining words and striking them down. I don't like the first approach which says "what this means is...", and neither does Scalia (who is otherwise wrong about a lot of stuff but he's particularly right about that). I hold that simply saying "this law is unconstititional, because it violates the rights of the individual" is sufficient, assuming that the rights-based reasoning is valid.

Now, "objective" refers to two different aspects of law, both of which should be true. One of them is that the law should be stated objectively -- read the German Code for an exemplar of objective statement, and the US code for an exemplar of subjective statement. The other is objective justification. A proper law must pass both tests.

In my opinion, Giuliani's claims about being a strict constructionist have no cash value without knowing what he things the Constitution says. Under a strict reading of the Constitution, states ("the people") would be allowed to pass a law outlawing abortion, so it's only when he states his opinion on a particular matter that we have an idea how he will go (what kind of judges he would appoint, if he has the chance).

There is no evidence at all that the meaning of words (or the structure of sentences) has changed over the past 200+ years to the point that "originalism" refers to anything other than "literalism". Not once has any legal case actually depended on semantic shift. The real issue has to do with the theory of concepts that judges have, especially the situation where new instances arise. One hopes that soon, Tara Smith's paper will become available: she does an excellent job of analyzing the relationship between objectivity and originalism.

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I think DavidOdden's comment gets at the heart of the matter. He says:

"I hold that simply saying "this law is unconstititional, because it violates the rights of the individual" is sufficient, assuming that the rights-based reasoning is valid"

There is nothing in the constitiution prohibiting the government from violating rights, although there are protections for particular rights. TI don't like textualists/strict constructionist/orignalists (like Scalia) because they only want to protect enumerated rights. That's why they object to Roe (and the whole post-Griswold privacy doctrine): there is no enumerated right to privacy or bodily integrity.

When Guliani promises us strict constructionists, he's promising judges who will narrowly interpret rights protections. Like Rand, I think liberals make the best judges: they read rights protections expansively, even if their legal reasoning is sometimes sub par. I wrote the post because I'm trying to do my part to stamp out a pathological strain of conservatism in some of the posts on this forum. We shouldn't ignore the conservative judiciary's refusal to protect rights just because we like the original Constitution.

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I wrote the post because I'm trying to do my part to stamp out a pathological strain of conservatism in some of the posts on this forum. We shouldn't ignore the conservative judiciary's refusal to protect rights just because we like the original Constitution.
It's a problem: of course, liberals are despicable and have no respect for property rights, but conservatives are despicable and have no respect for individual rights. It's not uncommon for people to mistakenly think that Objectivism is some special kind of conservatism, when Rand was clear in her denunciations of conservatism as intellectually bankrupt (see esp. "Conservatism: An Obituary").

You might generally expect the leftwing judges to be good on personal freedoms like sex, drugs and religion, and rightwing ones to be good on basic business. Now I haven't been following this year's SCOTUS rulings, but I took a look at some of the most recent just to see if there's anything wildly surprising. I found Philip Morris v. Williams to be surprising. The majority held that the grossly excessive $79.6 punitive damage designed to punish Big Tobacco for injury to non-parties is a violation of the Due Process Clause. So note that Scalia, Thomas, Stevens and Ginsburg are the dissenters -- I guess being a rightwing judge doesn't help that much for business-related cases.

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I think the idea that conservative justices would restore property rights specious. To add to DavidOdden's examples, didn't the SCOTUS also just affirm an extremely expansive reading of the "takings" clause? While their has been some hoolabaloo about the "New Federalism," decisions such as Lopez and Morrisson have struck down things like extra criminal penalties for gun posession near a school and civil remedies for victims of domestic violence... This is hardly the return of the Lochner court.

Thus, while liberals might be marginally worse for property rights, conservatives will be way worse for other kinds of rights.

My conclusion: more liberal judges are good.

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In my opinion, Giuliani's claims about being a strict constructionist have no cash value without knowing what he things the Constitution says. Under a strict reading of the Constitution, states ("the people") would be allowed to pass a law outlawing abortion, so it's only when he states his opinion on a particular matter that we have an idea how he will go (what kind of judges he would appoint, if he has the chance).

The cash value is this: Whatever the laws say, that is the law. I don't know the Constitution by heart, but I believe that whatever is in it ought to be upheld by our legal system, and not an unpredictable set of laws contained within the mind of a judge--even if the judge rules according to laws that would be based on reason, had they been legislated. (I would qualify this statement for some extreme cases, but that's not relevant to the current topic.)

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The cash value is this: Whatever the laws say, that is the law. I don't know the Constitution by heart, but I believe that whatever is in it ought to be upheld by our legal system, and not an unpredictable set of laws contained within the mind of a judge--even if the judge rules according to laws that would be based on reason, had they been legislated.
That's exactly what Blackmun did in the case of Roe v. Wade, and exactly what Scalia failed to do is Philip Morris v. Williams, or the majority failed to do in Kelo, or in US v. Standard Oil.

Your notion of applying laws "literally" is what has no cash value. No laws are or can be self-contained, which is the legal positivist's fundamental error.

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I do not believe that there exists today any theory of judicial interpretation sufficiently compatible with Objectivism to allow a rational voter to rely on a candidate's averment of adherence to such theory. There has been a fundamental shift in jurisprudence since the drafting of the Constitution from legal naturalism ("Natural Law") to legal positivism. DavidOdden's "this law is [unconstitutional], because it violates the rights of the individual" may have been sufficient under the latter, but it is absolutely rejected by legal positivism. Arguing about which positivist jurisprudential model is best is like arguing which socialist is best: the lesser evil is still evil.

I think textualism may be a lesser evil than, say, doctrionalism or developmentalism, but textualists tend not to look beyond the text. With the Constitution, I think it is essential, given its broad and sometimes intentionally vague language, to look to other text, particularly (perhaps even exclusively) the Declaration, in order to remind us of the purpose of government: "To secure these rights." Textualism in the context of positivism can lead to as much harm as any of the others, because no objective law can exist under a positivist jurisprudence. If the Constitution says so (for example, that Congress has the power to regulate interstate commerce), then it must be true; the reasons for drafting the thing and its intended function be damned.

-Q

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Conservatives have a huge flaw when it comes to the constitution. They believe the only constitutional rights of the individual are thsoe specifically ennumerated in the Bill Of Rights. So they hold Roe v Wade to be wrong because there is no ennumarated right either to an abortion or to privacy. This completely ignores the IX ammendment.

This isn't a flaw of all conservatives, but of most of them.

Liberals, ont he other hand, believe the Constitution to be a "living document." Long story short, whatever's in the Constitution ought to mean whatever the Liberal ideology dictates at the time. This is classic subjectivism, as it does not even recognize the simple fact that words have meaning.

Again, not all Liberals, but most of them.

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Arguing about which positivist jurisprudential model is best is like arguing which socialist is best: the lesser evil is still evil.
Yeah. I've gone back and forth on the "Scalia -- Saint or Satan?" question, and now that I see The Big Picture, I can see the cloven hooves and yellow slit eyes. He is still really entertaining -- an excellent read and a good speaker, but still he can make nonsense up with the best of them.

Actually, if I were to go after one legal concept as the fundamental embodiment of evil, it would be deference. That covers general deference (e.g. deference to the administration in interpreting a regulation) and stare decisis. Not to mention, the deference extended to Congress when they construct insane laws that can't have been intended to say what the prosecution / plaintiff claims it means.

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That's exactly what Blackmun did in the case of Roe v. Wade, and exactly what Scalia failed to do is Philip Morris v. Williams, or the majority failed to do in Kelo, or in US v. Standard Oil.

Your notion of applying laws "literally" is what has no cash value. No laws are or can be self-contained, which is the legal positivist's fundamental error.

If, by "self-contained" you mean that I claim laws are only to be understood by the text of the laws on the books, then you are wrong. I never claimed anything like it, but I do claim that the letter of the law must not be violated. If, however, it requires looking at case-law and historical context to understand the precise meaning of the letters, then by empty tautology that is what must be done before ruling one way or another. How you could have ignored this when trying to understand my post, I'm not sure.

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If, by "self-contained" you mean that I claim laws are only to be understood by the text of the laws on the books, then you are wrong.
Then I take it that you didn't mean that whatever the law says, that is the law. And you did mean to say or imply that judges ever base deisions on unpredictable set of laws contained within the mind of the judge, i.e. his knowledge of the literal statement and assumed intent behind the law. And you're presumably not claiming that the letter of the law must never be violated, because that would presume that the "letter of the law" is always self-evident, and that it is never necessary to appeal to statute-external principles to actually be able to derive a single reading of the law.

I don't think you are claiming anything: rather, you're just offering a bromide that whatever the laws say, that is the law. That's a wholely meaningless tautology. "Whatever", indeed.

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Then I take it that you didn't mean that whatever the law says, that is the law.

I did and do mean it. But in some cases you cannot know what the law says in the first place without understanding additional context. What keeps this from becoming subject to the decision of the judge is that the words have a determinate meaning within their context. So if a stock investor wants to know if he can do some action or if he wants to know the time limit on a copyright, he can investigate all relevant information and know exactly what the law states and which punitive actions might be taken in which cases.

I don't think you are claiming anything: rather, you're just offering a bromide that whatever the laws say, that is the law. That's a wholely meaningless tautology. "Whatever", indeed.

What I am claiming is that, more over, that is the law that should be upheld. Not a law that that is contrary to the laws on the books, not a law that is absent from the books, and--consistent with a long tradition of case-law, which I agree with--construing the laws narrowly.

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What keeps this from becoming subject to the decision of the judge is that the words have a determinate meaning within their context.
How is that relevant? This is what judges always do. So Giuliani's claim has no cash value until we know what he (or his would-be justices) think the Constitution and various statutes mean, in context. Claiming to be a "strict constructionist" is totally empty rhetoric. It refers to nothing concrete, it has no meaning. It only identifies a style of response, and a weak rejection of the worst of "greatest social benefit" allegiances. Read some of the opinions by these modern "strict constructionists"; you will not find a single one of them that appeals to just the literal words of the Constitution and the literal words of the statute.
What I am claiming is that, more over, that is the law that should be upheld. Not a law that that is contrary to the laws on the books, not a law that is absent from the books, and--consistent with a long tradition of case-law, which I agree with--construing the laws narrowly.
I don't know what you mean by the part in bold. What's the referent of "that" (the one after 'moreover')? What law should be upheld?
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How is that relevant? This is what judges always do.

Except those who legislate from the bench.

So Giuliani's claim has no cash value until we know what he (or his would-be justices) think the Constitution and various statutes mean, in context.

Why do we have to know what he thinks the Constitution means, so long as he appoints judges who he trusts will do the relevant research and rule according to standing law?

Claiming to be a "strict constructionist" is totally empty rhetoric. It refers to nothing concrete, it has no meaning.

It refers to the laws on the books.

I don't know what you mean by the part in bold. What's the referent of "that" (the one after 'moreover')? What law should be upheld?

Those stated on the books. To understand what those laws stated on the books mean, you may need additional context. But whatever that meaning is, whatever is actually expressed in the laws, those are the laws that should be upheld.

No, this does not imply a particular set of concrete laws that would be upheld, such as a law to protect abortion, because it is a philosophy of approaching the judicial office--which is how the very office is designed to be approached. If we are to look to meaning and context, look at why the judges are appointed for life by the president. Because the framers wanted them to be more-or-less unaccountable to the voters, and they wanted unaccountability because they were not involved in the legislative process. So if you want a judge that applies the Constitution, he should be a strict constructionist.

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Except those who legislate from the bench.
All appelate judges do: that's what stare decisis implies.
Why do we have to know what he thinks the Constitution means, so long as he appoints judges who he trusts will do the relevant research and rule according to standing law?
To know what kind of judges he will appoint, so that we can know what kind of decisions they will hand down. Obviously there are no guarantees since a judge can change his mind about what he thinks the law says, but it's better to know to what extent a judge is likely to uphold rights. Thus it matters what his view is, since that determines (in the evolutionary sense) what their views will be -- does he agree with Giuliani or not -- which will determine what rights are violated vs. protected.
Those stated on the books. To understand what those laws stated on the books mean, you may need additional context. But whatever that meaning is, whatever is actually expressed in the laws, those are the laws that should be upheld.
As I said, that is what judges always do: they do uphold the laws on the books, interpreted according to any other necessary context. Is it that you sometimes don't like the context?
So if you want a judge that applies the Constitution, he should be a strict constructionist.
I want a judge that protects rights. I guess your fundamental error was in starting from the central principle that the purpose of a judge is to apply the Constitution. But that is false. The purpose of a judge is to make a just and reasoned decision in matters of law, especially with reference to the function of government, which is the protection of the rights of individuals.
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Given that this discussion is about the 08 election, it is important to keep context ine mind. I think DavidOdden's claim that Guliani's promise of strict constructionist is "empty rhetoric" to be misleading. In the current context, we know exactly what that will mean; in general, a very limited reading of rights protections and in particular a probable reversal of important rights-affirming diecisions like Roe v. Wade and Lawrence v. Texas.

In addtion, I started this thread exactly in order to try to convince people like "aleph 0" that there out to lunch when it comes to judicial interpretation. What's wrong with judges "legislating from the bench"? It's not like the legislature is doing a great job. While simply applying the law might be a good idea in the abstract, it is not an end to itself (see immigration and the Rule of Law for more on that debate). I don't care if liberal judges are "subjectivists." After all, Scalia and his goons are just subjectivists of a more subtle stripe. In the end, it's about rights, rights, rights... Anyone who claims otherwise needs to re-read their Objectivism, especially given Rand's rather explicit statements on the matter.

P.S. Stare decisis is just the idea that judges should follow precedent. It is sometimes good strategically (without it, Roe would have probably been reversed in the Casey decision), but it is not and end in itself... although aleph 0 would probably think that it is.

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In the current context, we know exactly what that will mean; in general, a very limited reading of rights protections and in particular a probable reversal of important rights-affirming diecisions like Roe v. Wade and Lawrence v. Texas.
My uninformed sources say that Rudy supports legal abortion: do you have contrary evidence? Idem gay rights. So those two decisions are safe, with him at the helm (if he doesn't go over the edge, if he has a say in the picking of the tie-breaker). It's irrelevant whether he claims to be a "strict constructionist", what matters is his actual position on particular issues. Unless the use of the empty rhetoric is evidence that he doesn't actually have a position that can be relied on -- I'm quite willing to believe that.
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"Legislating from the bench" could mean several things. If you mean that having "activist" judges strike down statutes that violate rights, I agree. But if you mean actual legislating, i.e. creating a new crime, then I do not. Judges should not make up the law; they should make sure the legislature isn't making up laws that are inconsistent with individual rights.

Also, I'm not so sure about Lawrence. Certainly Scalia's dissent takes a "strict constructionist" view, but Lawrence just hasn't had the effect everyone (on both sides) thought it would. Incest laws were recently upheld against a Lawrence-based challenge.

-Q

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Yes Guliania has been pro-choice, but now he's entering the GOP primary so he has to wrap his lips around the throbbing member of the Christian right in order to get the nomination. That's why he's adopted the line about "strict constructionism." In a weird way, it is the inverse of the standard Christian Democratic line "I think abortion is immoral but don't believe it should be outlawed because of my constitutional principles." It allows him to effectively reverse his posiiton on abortion rights without seeming to wobble. It certainly has more credibility than Mit Romney's "I used to be pro-choice but now I want to be prez so I'm pro life! Look at me, I'm a Mormon and have only had one wife so you lunies on the Christian right can definitely trust me!"

Regardless of Guliani's personal beliefs, he's is likely to nominate justices who are less willing to protect rights than the justices who would be nominated by a Democrat. Still, I would trust him more than the other GOP candidates.

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"Legislating from the bench" could mean several things. If you mean that having "activist" judges strike down statutes that violate rights, I agree. But if you mean actual legislating, i.e. creating a new crime, then I do not. Judges should not make up the law; they should make sure the legislature isn't making up laws that are inconsistent with individual rights.

It's about the checks and balances of powers, too. The legislative measures of Congress are neither sacrosanct, nor above the law (ie the Constitution). Congress, or a state legislature, can pass a law making slavery legal. The judiciary then has a right, and an obligation, to strike it down as unconstitutional.

The problem with so-called activist judges, is that they find "rights" within the law that 1) are not rights, 2) violate other people's rights, and 3) are not in the law to begin with. One such case is Kelo. I'm still astonished that several courts passed on such blatant disregard of the Constitution.

Another oft-cited case is the decision by a Massachusets court legalizing gay marriage. I won't comment on that because I don't know what the laws involve actually say.

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Yeah Kelo was the "takings" clause decision I was thinking of, although it wasn't an example of activist judges inventing new rights. Rather, the majority rules that it met the "rational basis" test for evaluating the scope of takings in the 5th Amendment.

The law is full of these "balancing tests" and it is questionable whether they are compatible with objective law. But they aren't a creation of "activist" judges: all schools of jurisprudence have them, and it would certainly be difficult to do without them. For example, what if the government needs to violate rights in an emergency (e.g., War on Terror or WWII). The SCOTUS applies balancing tests like "compelling state interests" to determine if such rights violations are acceptable. Personally, I'm an avid civil libertarian who would rather have five more 9/11's than a single case of government sanctioned torture, but I realize that I would probably be in the minority. Those who believe these rights violations are "sometimes" acceptable would have difficulty finding a standard to define this "sometimes" without using a balancing test of some sort or another.

And I'm fine with the SCOTUS finding new rights (like the right to abortion, or the right to have gay sex). If the legislature won't protect my rights to have gay sex with an aborted fetus, then more power to the courts!

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