C
Cougarfan87I've read a couple of things here recently that have this Lawyer scratching his head. So I thought I would give a quick primer on how the Supreme Court interprets the Constitution (and thus creates Constitutional Law).
When something is determined to be a right under the Constitution, it does not mean that the Government cannot infringe upon that right. If the right is considered a "fundamental" right, then the Government must show a "compelling" state interest in infringing upon that right.
If you look at most of the laws concerning abortion that are struck down, it is because the Supreme Court has invented a right of privacy out of the penumbra of rights listed in the Constitution, and declared the right to an abortion prior to when a baby can live outside of the mother's womb on its own to be a fundamental right of the woman based on her privacy. Hence, the government seeking to infringe on that right must show a compelling state interest to do so.
If a right is not considered a fundamental right, then the Government must only show a rational basis attributing to a legitimate state interest.
In sum, just because you have a right under the Constitution does not mean that the Government cannot regulate it--It must only show a compelling state interest (such as highway safety) for fundamental rights or a rational basis to achieving a legitimate government interest for rights not considered fundamental.
The interesting thing is nowhere in the Constitution does it say that the Supreme Court is the final say on what the Constitution means. In fact, it was the Supreme Court that made that decision, which was never challenged by the other two branches.
Frankly, I would be in favor of an amendment to the Constitution that would hold that no Supreme Court decision would be considered as authoritative unless ratified by 3/4 of the state legislatures. That would put the interpretation of the Constitution back into the hands of the people rather than leave the interpretation of the Constitution at the mercy of the political leanings of five people.
When something is determined to be a right under the Constitution, it does not mean that the Government cannot infringe upon that right. If the right is considered a "fundamental" right, then the Government must show a "compelling" state interest in infringing upon that right.
If you look at most of the laws concerning abortion that are struck down, it is because the Supreme Court has invented a right of privacy out of the penumbra of rights listed in the Constitution, and declared the right to an abortion prior to when a baby can live outside of the mother's womb on its own to be a fundamental right of the woman based on her privacy. Hence, the government seeking to infringe on that right must show a compelling state interest to do so.
If a right is not considered a fundamental right, then the Government must only show a rational basis attributing to a legitimate state interest.
In sum, just because you have a right under the Constitution does not mean that the Government cannot regulate it--It must only show a compelling state interest (such as highway safety) for fundamental rights or a rational basis to achieving a legitimate government interest for rights not considered fundamental.
The interesting thing is nowhere in the Constitution does it say that the Supreme Court is the final say on what the Constitution means. In fact, it was the Supreme Court that made that decision, which was never challenged by the other two branches.
Frankly, I would be in favor of an amendment to the Constitution that would hold that no Supreme Court decision would be considered as authoritative unless ratified by 3/4 of the state legislatures. That would put the interpretation of the Constitution back into the hands of the people rather than leave the interpretation of the Constitution at the mercy of the political leanings of five people.