Sunday, September 07, 2003

The Dangers of Judicial Activism

Jeffrey Rosen makes a strong case in the New York Times for the notion that judges should tread carefully in using their powers to short-circuit public debate about controversial issues. Whatever one's political stance may be, it is possible to believe that a ruling is both morally correct and legally unjustifiable, as is so evidently the case with Roe v. Wade and Lawrence v. Texas.

One needn't be a fundamentalist, or even a conservative, to accept that there simply isn't anything in the American constitution that confers any sort of right to a first-trimester abortion, and talk of "penumbras" and "emanations" does not suffice to twist the plain text meaning of the document to serve such purposes. The same is true of Lawrence v. Texas, which strikes me as being just plain bad law, and this despite the fact that I think there ought to be a fundamental right to privacy in the constitution, covering not just what five judges on the Supreme Court believe worthy of their protection, but all aspects of everyday life, whether it be one's sexual practices or one's choice of chemical distraction.

It is hypocritical in the extreme for the Supreme Court to rule, as it did, that the implied right to privacy fails to extend to other private transactions such as sex for money, when the moral reasoning against sodomy and prostitution are exactly the same. That a man should be willing to pay for sex when it can so easily be had for free strikes me as pathetic, but my disapproval of such transactions shouldn't be grounds for me to prohibit others engaging in them, and a public debate in the course of which those whose beliefs agreed with mine won over the majority to their stance would have been much preferable to the current situation, in which Supreme Court judges have to go through all sorts of casuistic contortions to justify prohibiting soliciting and prostitution while permitting sodomy. As matters stand, those who would like to legislate on matters of private morality are made to feel like martyrs, and not without reason.