jmatonak

I gotta stop paying attention to the Supreme Court.

It turns out you can't actually constitutionally strip-search a 13-year-old girl if you suspect she has prescription-strength ibuprofen (!) in her undies. So that's good. But, if you're the girl, you can't sue the bastards that did it, because the law is unclear on the issue.

Jesus.

So the Department of Justice filed a brief that amounts to a defense of DOMA in federal court on Thursday. A married gay couple wants federal benefits; I assume it's because one of them is a federal employee. More here.

( A letter I sent to the White House )

Looking at it now, I feel I was too reasonable. What I've seen of the brief is shameful, and the idea that the DoJ "must" enforce it is horseshit. I suspected it was, and now I have proof. This is just crap piled on crap. Epic fail is too mild.

The President does a lot of stuff I agree with, and I admire him. But not for this. This is bigotry and bullshit, and he should know better.

The Rules: Post info about ONE Supreme Court decision, modern or historic to your lj. (Any decision, as long as it's not Roe v. Wade.) For those who see this on your f-list, take the meme to your OWN lj to spread the fun.

I have something of a reputation as a "Supreme Court geek" amongst (some of) my friends, so I felt obligated to do this meme. :)

I'm having real trouble deciding amongst three cases. Two of them (Ex parte Milligan and West Virginia Board of Education v. Barnette, affirm the propositions (respectively) that no one person, even a president, is above the law; but some fundamental freedoms are not subject to majority vote. I've quoted from those opinions in this LJ before. Therefore, for today, the winner is...

Griswold v. Connecticut, a case from the 60s which marks the only time I am aware of that any justice has held that the Ninth Amendment is more than a "mere truism". Justices are usually loathe to admit the Ninth Amendment- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"- means anything, presumably because no one likes the idea of every criminal defendant asserting some screwy "right" to rob liquor stores or something. The case was about contraception and Justice Goldberg found a right to family planning among the rights "retained by the people." (Earl Warren joined in Goldberg's opinion.)

Goldberg's opinion is just a concurrence. The opinion of the Court marks the origin of the "right to privacy" found in the "emanations and penumbras" of the various amendments. The idea of "penumbras" is kind of cheesy- it means that the amendments are held to say things they don't actually say- but also unavoidable in some ways. For example, the First Amendment freedom of speech necessarily implies a freedom of conscience- if I am free to assert a political proposition, I must be free to believe it. In Douglas' majority opinion, the amendments combine, like a constitutional Voltron, to produce effects together that none of them produces alone.

So Griswold itself isn't actually held, as a matter of precedent, to say that the Ninth Amendment means anything. I really like that idea, though. The Ninth Amendment should mean something.

Mr. Card does not like gay marriage, because it is not in accord with his religious beliefs. He claims to be against it because it is "the end of democracy in America." His objection is that courts are interpreting state constitutions so as to allow gay marriage, even though the popular vote has come down against it.

Mr. Card does not understand the plain meaning of the phrase "interpreting the state constitution."

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." -- Robert H. Jackson, majority opinion in West Virginia Board of Education v. Barnette (1943), emphasis added.

I trust that Jackson's reference to the Bill of Rights rather than the California constitution does not obscure the issue. It is one of the oldest principles in American law that a Constitution, be it federal or state, cannot be circumvented by a mere act of the legislature, however well that act may accord with the popular will.

I have some problems with the "right to property" protected by the U. S. Constitution. The word "Constitution" implies that, no matter how many people agree with me, I can suck it. So, too, can Orson Scott Card. An attempt to enact religious dogma into law under the banner of "democracy" is odious. A member of a comparatively small sect such as the LDS should know better.

The tyranny of the majority is still tyranny, so William H. Rehnquist can bite me too.