From: cwinemil@keys.lonestar.org (Chris Winemiller)
Newsgroups: tx.politics
Subject: Re: Pro-Choice
Date: 13 Aug 92 04:24:04 GMT
Distribution: tx
Organization: None

rocky@NeoSoft.com (Joe Mullally) writes:

> In article <63s9oB2w164w@keys.lonestar.org> cwinemil@keys.lonestar.org (Chris
> Winemiller) writes:
> >
> >Before the SC invented the [limited] right to abortion, the majority of
> >people _had_ expressed their opinions on abortion through their states'
> >legislatures.  Why do _you_ think SC judges have the right to create new
> >Constitutional rights against the express will of the _people_?  If
> >convenience abortions are so popular, then there should be no problem
> >creating a Constitutional amendment guaranteeing that right.
> 
> 	The Supreme Court decision I've now posted twice does indicate
> that the "right" to an abortion is guaranteed, to the satisfaction of
> those on the court at that time. Of course, today's court might not make
> the same "interpretation". I'll grant that "interpretation" has become
> politically motivated to the point that it really represents "creation".
> I'll accept that that is the case, be the court liberal or conservative.
> Agreed?

Agreed; no court (liberal, conservative, or whatever) should be permitted to
exercise such creation.

> Now, that said, [what do we do about this problem?]

[Joe's suggestions chopped for brevity's sake]

There can be no requirement for justices to be personally "a-political"; it
is unrealistic, and, as private citizens, they have a right to be
politically active.  However, _when they sit as judges in active court_,
they should set aside the personal political cloak, and don the cloak of
"court justice", deciding what the laws mean (as they were intended), and
applying them to the situations at hand.  I think this can be possible.
Other professionals (doctors, psychologists,..) set aside "personal" issues
when they step into their offices; why not justices?

Additionally, I agree with your point that extremes are partly balanced by
slow-moving changes in the political nature of the court, as new appointees
by different Presidents ascend the bench.

The best solution, I think, is for justices to have a consistent, sound,
proven set of principals by which they can consistently interpret the
Constitution.  Only one exists: "original intent."  See Robert Bork's book
for an exposition of this viewpoint.

...
> What this means is that the court doesn't
> and hasn't invented any rights, technically, and that it feels our
> forefathers intended such a right to exist. Now, your argument that the
> court shouldn't be able to "find" such rights that didn't seemingly
> exist before would tend to scare me.

The _reverse_ frightens me: a court which can "create" law (or "rights") out
of nowhere by ignoring the _contract_ (Constitution); such a court can also
"uncreate" rights, even if explicitly found in the Constitution's text. 
How? By holding to the view that the text cannot be directly meaningful to
today's country.  I'd much prefer a court who obeys _the written law_
interpreted according to its original intent.  _That_ will provide sound
principals for extrapolating to current situations in our country.  It will
also force usage of the Legislature to bring about changes in law, just as
it should be.

Chris

-- 
Chris Winemiller         Internet: cwinemil@keys.lonestar.org
                         UUCP    : texsun!letni!keys!cwinemil