Right to Privacy/Constitution
On the surface, Edwin Meese's "jurisprudence of original intention" remains loyal to the framers' intent, faithful to the fundamental principles upon which the nation was founded. A jurisprudence of original intention prevents Supreme Court justices from allowing their personal beliefs or political affiliations from impacting their judicial decisions. Furthermore, altering federal law every few generations would be detrimental, not conducive to democracy and so it is important not to be too liberal when interpreting the Constitution. In fact, the founding fathers built into the American electoral process mechanisms that curb fleeting passions: which is why the United States is a Republic and not a direct democracy. Strict ascription to the Constitution offers structure and order to what might otherwise become a chaotic and biased legal debate. Therefore, Meese's brand of "constitutional fidelity" is a romantic concept and makes logical and emotional sense.However, Justice William Brennan Jr. offers a counter-argument more grounded in reality and common sense, more optimistic and constructive than Meese's notion of "constitutional fidelity" (p. 318). American social values and norms change rapidly and often for the better. For in
stance, slavery was once embedded into the Constitution and its Bill of Rights, as were the prohibition on women's suffrage and the prohibition of alcohol. Many of the Constitution's original provisos were anachronistic before the year 1900, let alone by the year 2006. Moreover, the Constitution inherently permits some degree of flexibility, within wise parameters. For example, while the Second Amendment declares that citizens have the right to bear arms, the Constitution does not prohibit states from mandating gun licenses or from prohibiting certain types of automatic weapons to be sold without special permits. Similarly, the right to privacy is not overtly protected in the Constitution, even though many Supreme Court decisions reflect the belief in the right to privacy. Privacy, like racial and gender equity, has become core social values even though those values were not embedded into the Constitution. Privacy became the underpinning of many Supreme Court decisions, including Roe v. Wade, guaranteeing women the right to choose whether or not to have an abortion. When core social values change, the Supreme Court has the opportunity to shape political outcomes: what Meese deridingly calls activist jurisprudence. Yet it was activist jurisprudence that gave America Brown v. Board of Education, Roe v. Wade, and Miranda v. Arizona, to name a few. The Supreme Court can and should check the powers of the executive and legislative branches of government: to do so is one of the Court's most important duties. What Meese criticizes as "activist jurisprudence" can therefore be more accurately and less shrilly called the democratic process and a willingness to change and grow as social values change. When the Supreme Court debates issues with ambiguous support in the Constitution, such as abortion, Meese advises that justices choose a decision with the least contradictions to the original document. Roe v. Wade could have easily been based not on the nebulous notion of privacy, but as much on the First Amendment, guaranteeing freedom of religion. Because most opponents of abortion base their arguments on religious grounds, abortion
Some common words found in the essay are:
Supreme Court, Bill Rights, Roe Wade, Moreover Constitution, Constitution Justices, United Republic, Brennan Jr, Amendment Americans, Amendments Constitution, Similarly Constitution, supreme court, social values, activist jurisprudence, core values, values change, jurisprudence original, social values change, jurisprudence original intention, original intention, roe wade, supreme court decisions, constitutional fidelity, bill rights, values change supreme, prayer public schools,
Approximate Word count = 1443
Approximate Pages = 6 (250 words per page double spaced)
|
