Stephen’s Statements A little bit of everything from Stephen Duncan Jr, a Software Developer in Portland, Oregon

Thursday, July 28, 2005

How Politicized Focus Can Taint Discussion

The 9th Amendment and Unenumerated Rights. Read through the comments.

It's interesting to see how a currently highly politicized concept can take a discussion in a direction that, without knowledge of the political concerns, would seem totally illogical. In this cae, the politicized concept is the current fear of "activist judges" and the power of "the Court." The arugment over unenmuerated rights gets turned on its head: people argue that recognizing unenumerated rights give more power to the Government vs. the People, because it gives the Court more power to overturn laws based on these unenumerated rights.

Without this fear, such discussions are at least generally stated in more straight-forward terms: unenumerated rights give more rights to the people, and limit "democracy" (the State). The idea that just because, within the State, power flows from the Legislative to the Judicial branch, that somehow increases the total power of the State is, to me, clearly foolish. Additionally, it totally ignores the fact that unenumerated rights greatly expand the liberty of the individuals.

It's also amusing to note the irony and hypocrisy created by this particular case. The two primary issues that have led to the recent concern over "activist judges" are gay marriage and prayer-in-schoools (abortion also plays a role here). Since these are all issues decided against "conservative" beliefs, conservatives began to have a concern about the Judicial branch. This lead them to actually begin to worry about the flow of power from the Legislative branch to the Judicial. The only way to justify this is to express concern over the Court overruling "the will of the people." The collective people. When this leads "conservatives" to invert an unenumerated rights argument to take the side of worrying about the rights of the collective over the rights of the individual, either the world has gone topsy-turvy, or conservatives making the switch are exhibiting hypocrisy.