This case illustrates the problems with the Court creating “rights” through the process of Substantive Due Process.
1. The discovery of new rights is inherently subjective (this problem was noted by Justice Iredell as early as Calder v. Bull in 1797).
2. In creating “rights,” the Court is inherently making a policy judgment supporting those rights, and in so doing becomes a political and not judicial body. As we’ve seen since Roe v Wade led to the character assassination of Robert Bork, membership in the political court has become a political issue.
3. It denies the public the ability for political input in the policy decision, which very much rubs the public the wrong way.
4. It creates a labyrinth of “rights” that will inherently cause them to come into conflict with each other, as they do here. When that happens, the state, acting through its judiciary, becomes the arbiter of those rights. One of them must lose, and when it does, it is no longer a right but a license, like a fishing license, to be granted and revoked as the state sees fit.
To me the best characterization is the difference between Roe v. Wade and the 19th Amendment (women’s suffrage). The women’s suffrage movement was consistently opposed for a number of years, but after 32 states had given women voting rights, the nation was ready for a Constitutional Amendment. It was proposed, debated and adopted through the political process. It has not been a subject of serious debate since.
Roe v. Wade on the other hand was created out of thin air and forced upon the public without benefit of their input, and remains controversial 40 years after the ruling.
>> the state, acting through its judiciary, becomes the arbiter of those rights. One of them must lose, and when it does, it is no longer a right but a license, like a fishing license, to be granted and revoked as the state sees fit.
Excellent analysis. Bears repeating. People need to understand this.
Thanks for your post.