From: sunder@altair.crhc.uiuc.edu (Srinivas Sunder)
Newsgroups: soc.culture.indian
Subject: Re: Arrogant Indians and Susan Forgach
Date: 12 Sep 1992 16:24:20 GMT
Organization: Center for Reliable and High-Performance Computing, University of Illinois at Urbana-Champaign
Distribution: world
NNTP-Posting-Host: altair.crhc.uiuc.edu

In article <1992Sep11.025446.19348@cis.ohio-state.edu>, jayasim@platypus.cis.ohio-state.edu (D Jayasimha) writes:
|> In article <18o3amINNfo9@roundup.crhc.uiuc.edu> sunder@altair.crhc.uiuc.edu (Srinivas Sunder) writes:
|> >In article <1992Sep10.115744.24576@news2.cis.umn.edu>, prabhak@giga.cs.umn.edu (Satya Prabhakar) writes:
|> >|> Interesting! Say, can you please tell us how you distinguish the
|> >|> separation of powers between the judiciary and the legislature!
|> >
|> >Simple. What's in the Constitution is in their purview, what isn't
|> >isn't. Wherever laws that violate one or more liberties that the
|> >Constitution guarantees are passed, the court steps in. Else, it has
|> >little or no jurisdiction. The rest are left to the people, either
|> 
|> The distinction is not as simple as you make it out to be.

In practice, that's true. But then, the question was simplistic enough to
warrant a simplistic reply.

|> For example, the Constitution guarantees life, liberty, and the pursuit 
|> of happiness.  In the current debate, one could argue that the life of 
|> the foetus is at stake on one hand while on the other, a "liberty," i.e., 
|> the reproductive freedom of the mother is at stake (though the Roe vs. 
|> Wade case was argued on the grounds of invasion of privacy).  Since


That's precisely the point that I am making too. When you cannot balance one
off against the other, it is the people's wishes that should matter. On the
issue of privacy, one finds many references in the Constitution that are
indicative of guaranteed zones of privacy to be sure, but nowhere is there an 
explicit right to privacy, probably because it is virtually impossible to
define what exactly "privacy" means. That hasn't stopped many states from
incorporating such privacy rules nto their constitutions though. 

|> each side feels that a constitutional guarantee is being violated, it
|> is only fitting that the court steps in.  IMO, attempts to ban abortion 
|> through legislation will only end up in the courts because such a ban 
|> will be viewed as unconstitutional.

There are debates and disagreements ALL the time. In a democracy, we let the
people, acting through their elected representatives, decide, NOT judges who are
appointed and accountable to no one for their actions.

|> 
|> >For a beter idea of what exactly I think of Roe, and the extent of
|> >judicial activism inherent in it, I suggest you read the editorial
|> >in the New Republic the week after the Casey decision was handed down. 
|> >It explains the issue better than any thing else I have read. If you 
|> >want to delve into it further, try _The Tempting of America_ by Robert Bork.
|> 
|> After reading some of Bork's writings, frankly, I do not give much
|> credence to his thoughts.  He has been crying hoarse about "original
|> intent" and the literal interpretation of the Constitution- if people
|> like Bork had their way, the blacks in America would still be considered
|> "fractional" human beings.

Lots of people will disagree with you, even people on the other side of
the spectrum from Bork (like Justice John Paul Stevens, who publicly endorsed
his SC nomination at least twice; and Prof. Anita Hill, who was his student at 
Yale University). I challenge
you to find ANYTHING in ANY of Bork's writings -- and I mean "proof", as opposed
to the ravings of Senator Kennedy or Metzenbaum or some fancy ad with Gregory
Peck speaking what he thinks that Bork thinks -- which would substantiate the
implicit reference in your statement that Bork is a racist.

Further, Constitutionally speaking, until the 13th Amendment was ratified,
black slaves WERE 1/3 voters. That was the law of the land, and had Bork been a
judge then, he would have been duty-bound to treat them as such. Even as
he would have been duty-bound to treat black Americans as full people once the
13th Amendment was ratified, no matter how he felt prior to the amendment's
full ratification. A judge's decision has to be reflective of the law and the
law's purpose, not what the judge happens to think is a good idea when the case
comes up before him/her.


|> As far as the classic judicial restraint vs. activism debate is concerned,
|> it is rather difficult to come to a unbiased decision - one's views depend
|> on which part of the political spectrum one occupies.  You wave the New
|> Republic and I will wave the Nation :-)

Both the TNR and the Nation are on the same side of the spectrum when it comes
to social policy, except that the TNR, being composed of "thinking" liberals does
not automatically presume that everything that is "right" is already in written 
into law, and is willing to let the democratic process make that decision.
Which was my point -- that both "thinking" liberals and conservatives (as opposed
to "instinctive" liberals and conservatives) believe that this is an issue to
be resolved through debate and consensus, rather than by judicial fiat based
on the ideological temperament of the majority of the SC. What the SC giveth,
the SC can take back, with little or no accountability to any masters.
Legislators, on the other hand, have to face their constituents ever so often,
and will be better reflective of the moral temperament of the nation, which
is what is called for, given that the question of deciding when exactly it
becomes wrong to extinguish a potential life is basically a moral issue.

We've drifted away from the original topic. If you wish to continue this, maybe
we should do it by e-mail.

|> jayasimha (jayasim@cis.ohio-state.edu)


-- 
Srinivas Sunder                                         sunder@crhc.uiuc.edu

If my employer shares these views, I'd be most surprised.
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