Wednesday, May 20, 2009


The impending resignation of Justice Soutrer from the Supreme Court, and the anticipation regarding appointment of his successor overshadows a more fundamental issue in American law. This issue is the erosion of legal and constitutional presumptions.

Although statutes are presumed to be valid, there is now in fact a presumption that all state legislation regarding social issues is unconstitutional. This is because such legislation results in groups that may feel excluded. Courts have replaced the "benevolent detachment" standard of establishment clause cases with a virtually conclusive presumption that religion is improper in the public arena. Even though Roe v. Wade specifically held that states could outlaw abortion in the third trimester, partial birth abortion survives because no statute outlawing it has overcome the presumption that such statutes are, and shall always be, unconstitutional.

This intellectually sloppy and illegitimate climate is an unchecked metastasis of the valid doctrine of strict scrutiny. Ideologically predisposed judges and justices have spread this concept to all corners of their ideological fancy and have left us with such abominations as Justice Breyer stating that he will look to foreign jurisdictions for reasoning that supports a conclusion that he wants to reach but which is unsupported by stare decisis.

That this slow erosion has occurred can be objectively verified by considering the treatment of privacy over the last forty years. Of course, when Griswold v Connecticut and Roe v. Wade extended protection to contraception and abortion, the legal concept involved was one of liberty and not privacy. However, there was no constitutional language, nor precedent, nor for that matter public support for the notion that sexual matters could not be regulated by legislation. After forty years of this, however Justice Kennedy in Planned Parenthood v. Casey, dropped the charade and spoke of abortion in terms of liberty, not privacy. ("These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.") The presumption thus evolved from a nebulous non sequitur dredged up from the penumbra of search and seizure, to a full blown liberty interest against which the forces of government should not prevail.

One does not need to be a lawyer to identify the unspoken legal presumptions of twenty first century America: Gay marriage is an existing, yet unrecognized right that merely needs judicial protection; Physician-assisted suicide is an issue awaiting hard facts to make bad law; rights should be unencumbered by responsibilities whenever practical; subjective sensitivities are entitled to the most vigorous legal protections; group rights should be fostered and expanded even beyond the point that the groups are no longer recognizable.

The biggest presumption that has changed, however, is that courts should confine themselves to the role conceived for them by the founders.

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