It appears Judge DeMoss is not looking to be appointed to the Supreme Court with this op-ed. Like most op-ed's it overstates its case. I would expect more from a federal circuit judge.hat
He attacks the Supreme Court's holdings that we have a right to privacy, saying that because the words, "right of privacy" are not in the Constitution, such a right cannot exist. Instead of attacking the Courts recent decisions that downplay a "privacy" right and focus on "liberty" (a word found in the Constitution). This alone is unbecoming of honest analysis.
In the first cases finding a right to privacy -- Griswold and Roe -- indicated a right to privacy could be centered in the "penumbras of the Bill of Rights," the Ninth Amendment, or the Fourteenth Amendment.
The Judge writes,
. . . use of the word penumbra by the Supreme Court should be understood to mean that in the court's view the right of privacy exists somewhere in the region that surrounds and lies outside of the Bill of Rights.
But there is absolutely nothing in the text of the Bill of Rights about any such surrounding or outlying area, nor is there any catch-all phrase (like "other similar rights") indicating that the rights specifically enumerated exemplify a larger class of rights that were not enumerated.
There are major problems with this argument.
First, the Court did not -- and does not -- only rely on "penumbras;" it has centered the right to privacy, or liberty, in the Fourteenth Amendment. I don't care if we stop calling the right to privacy the "right to privacy" and start calling it the "right to liberty," the effect is the same: the government cannot take control of my body, or outlaw -- based on religious faith alone – private, consensual acts between adults.
Second, "penumbra" does not necessarily means something "outside the Bill of Rights;" one could just as easily think of a penumbra as the area necessarily between the rights. The Bill of Rights can be seen less as an archipelago, and more of as important landmarks within a larger state.
Third, and most importantly, their is text of the Bill of Rights containing a catch-all phrase: the Ninth and Tenth Amendments. Reasonable people can dispute the meaning and importance of these amendments, but the Judge's "absolutely nothing . . ." statement is false.
The Judge even discusses these amendments, often ignored by conservatives, later in the commentary,
The Ninth Amendment in simple plain English says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I think the most reasonable interpretation of this simple plain English is that the argument, "its not listed in the Bill of Rights, therefore, it does not exist" is a loser.
The Judge however levies this non-sequiter:
the Ninth Amendment gives us two instructions: first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is "retained by the people."
Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.
The Judge admits that a right to privacy exists in the Constitution! Clearly, this undermines his argument that because the word "privacy" does not appear in the text, such a right does not exist. Instead of giving up, the Judge implicitly creates a two-tier system for rights protected by the Constitution: The Court can protect your enumerated rights, but the Court may not protect your unenumerated rights. Why this distinction? No reason is given. It is odd that the people must act in order for the Court to enforce some Constitutional rights and not others. What purpose is a constitutional restriction when the only means of enforcing it is through the majoritarian political process? The right of a minority group would not be protected under such a system, and the right of a majority group would not need protection.
Fourth, the Constitution does address issues of privacy. The Fourth Amendment protects American from unreasonable searches and seizures. The Fourth Amendment does not give the reason why warrantless searches are objectionable, but the answer should be obvious: we have a right to privacy in our homes and in our bodies.
The Judge responds,
The fact that the Supreme Court has said that the right of privacy could come from the First, Fourth, Fifth or Fourteenth amendments is solid evidence that the court is just guessing about where it does come from.
Yes, the evidence is so solid. Solid like a rock. A big heavy rock. A huge two ton rock of DNA evidence solid. Anyway, the fact that a right to privacy could come from the First, Fourth, Fifth or Fourteenth amendment is solid evidence that the the right to privacy is pervasive in the Constitution. Solid, like a three ton rock-of-DNA evidence.
And lets point out another couple paragraphs that should make any honest federal judge blush with embarrassment:
Some argue that the Constitution must be a "living, breathing instrument". . . .
These folks operate on the premise that the Supreme Court is infallible and omnipotent, and that once the Supreme Court has spoken, there is no way to change its ruling.
Um... no. People who believe in a living Constitution do not think the Court is infallible or there is no way to change its rulings. To say so is dishonest.
The Judge's solution:
call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution.
He does not actually say what people would be voting on. I would vote down a proposal to let the Court amend the Constitution, but then again, I don't think they have.
What kind of referendum would the Judge like?
a majority of the people in each of a majority of the states
Such a referendum is designed to create the outcome the Judge wants. The less than 1 million people in Montana would have as much power as the 40 million in California. His preferred referendum would place the outcome in the hands of the sparsely populated rural states. As could be seen during the last election, most of the electoral map was red, but only one more state was needed for a Kerry victory. A majority of States are conservative on the issue of abortion, while a majority of people are not.
It is also odd that the Judge -- so opposed to extra-Constitutional action by the Court -- would propose a referendum to settle the issue (again, I note that he doesn't exactly say what the issue is), when such an option is not enumerated in the Constitution. If the Judge wanted to constrain the Court through a Constitutional process, he should propose an amendment to the Constitution. The reason why such an amendment is not offered as a solution: it would never pass.
I feel sorry for any litigants coming before this ol' coot. His reasoning is guided by the outcome he prefers.
And this is not to say that I think Roe was correctly reasoned at the time, or that there are not legitimate arguments that Roe was wrongly decided or should be overturned. This Judge did not make an honest argument.