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Fundamental Rights and the Supreme Court

In a revealing op-ed, the Washington Post editors demonstrate that consistency is not a requirement for liberals’ constitutional jurisprudence. The editors correctly get this part right, regarding the ruling in McDonald v. Chicago:

It is correct because the general tendency of the court has been to find that the amendments in the Bill of Rights — guarantees of free speech and freedom of religion, protections against unreasonable search and seizure, prohibitions on cruel and unusual punishment — apply to state and local governments through the 14th Amendment’s due process clause. Some scattered and relatively minor provisions in the Bill of Rights — such as requiring a jury trial in civil cases or prohibiting excessive fines — are not deemed to have been “incorporated” by the 14th Amendment, but most are. Having decided that the Second Amendment protects an individual right to bear arms, it would have been odd for the court to determine that state governments can infringe on that right.

It’s even odder that the four liberal justices, over whom the editors often fawn, argued the opposite. But then there is this: “Monday’s ruling opens the door wide to an inevitable series of legal challenges that will tempt judges to substitute their judgments about gun control for that of legislators. They should act with proper restraint and respect for the limits of the judicial role.” OK, so the right to bear arms is a specifically enumerated right in the Constitution but the Court should not substitute its judgment for legislators’ policy decisions. Nevertheless, the right to an abortion, which is nowhere in the Constitution (it’s hiding under a penumbra, we were told), is so sacrosanct that virtually all legislative judgments are superseded by those of the Supreme Court.

Conservatives argue that the “right to an abortion” was made up out of whole cloth and that legislators’ judgments should be paramount, provided they don’t violate some other provision of the Constitution (e.g., an abortion ban which, if applied to women of one race, would violate the Equal Protection Clause). Once you acknowledge that something is a fundamental right, the highest level of judicial scrutiny applies — whether it is abortion, free speech, or gun ownership. And yes, that often displaces the judgment of elected leaders. This is precisely why the Court should refrain from expanding fundamental rights beyond those rights that are spelled out in the Constitution. The Post editors implicitly concede that it’s a big deal when we override the policy judgments of elected leaders. The lesson to be learned: don’t make up a bunch of new rights, or we will have much less democracy.



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