Our Broken Judiciary
“I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of ‘civilized standards of conduct . . . My point is that there is no provision of the Constitution which either expressly or implicitly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies.” -Supreme Court Justice Black Griswold v. Connecticut
Griswold v. Connecticut and cases like it are like a layer cake. On top is the frosting, the easy to digest, easy to see layer. Griswold is about birth control and giving men and women the right to privacy in the bedroom. Roe is about Abortion. It’s about women’s rights and striking down old patriarchal laws.
Eat the frosting, you can stop, call yourself full and the cake delicious, but there’s another layer. Another uncomfortable layer we as American’s have to discuss so we can achieve some amount of actual judicial reform. What is the second layer?
We are a country based on the rule of written law. If a law says we do X, we do X, not Y or Z. We are not a country based on the the rule of “emanations” or “penumbras.” Justice Douglas stated in his Griswold decision that previous court cases and the Bill of Rights created “penumbras” or extrapolations that created a right to privacy. Why is this a problem?
The right to privacy as explained in Griswold and Roe has no written component. There is no exact wording to argue, only that it vaguely exists. This means it can be ignored or reconstrued to fit the judges own personal beliefs and bias. We cannot as a country and as a people rely on extrapolation for our rights.
The eternal idiot and wanna be autocrat Alexander Hamilton believed that a separation of powers would protect the rights of the American people. He believed there was no need for a Bill of Rights, no need for written laws to protect US citizens. He was of course wrong. We to this day require exact and precise wording to protect our rights.
Justice Black made his contempt for the Connecticut law known in his dissenting opinion. He called it “an uncommonly silly law.” Where he was utterly correct was that the court should have no right to overturn this law and others like it.
The Judicial Branch of the United States is by far one of the worst and most overbearing. It has (intentionally and somewhat beneficially) the least oversight from the voting public and the lifetime appointment means any poor choices will be felt long after the president and senate who appointed them are gone.
The fact the Supreme Court gave itself power with Marbury v. Madison should have been foreshadowing for what the Court would later become. Justice Black was correct, the Connecticut law was silly and unjust, but it should have been the Connecticut voters and legislature to appeal and create a new law. This was NOT the job of the Supreme Court. Griswold, Roe, and the right to privacy should be codified into written law and NOT be sitting on court cases and opinions that can be over turned and ignored. Five people should not be allowed to determine what rights you do and do not have.
A conservative element in the US seek to overturn Griswold and similar laws in an attempt to “fix” societal problems in the US. Liberals and democrats want to uphold these court decisions despite the fact their built on pillars of salt, sand, and “emanations.”
The fix is obvious and right in front of our eyes. Have an actual written amendment protecting our right to privacy and then have actual, written laws protecting abortion and birth control rights. American’s don’t even have to wait on the Federal government. We as American citizens can legalize and protect these at the state level.
My name is Michael Vincent Hawthorne. I’m the author behind the Midnight Variety Hour. I write about a diverse range of topics and I try to write a new article about once a week.