Creation of Rights and Philosophy of Jurisprudence
by Thomas Katsampes

My Dad wrote to me, concerning the law, that
you are viewing these type of cases, issues, etc., superfically. you cannot. in order to fully understand a justice's reasoning, you not only need to read the case, but all supporting cases as well. i remember when i was in law school how oftentimes it was not enough to simply read the case; i had to go further and read the supporting cases (no wonder my eyes are shot).
I wrote back to him:

Well that's probably why the most I'll ever be is an armchair attorney. But the point is not so much delving into each case but rather what is the over-arching approach, i.e. philosophy of jurisprudence, of doing law. So for example when you say that there are rights "not specifically stated" in the constitution, by saying that very thing you are espousing a liberal legal philosophy, that is, of creating rights where none existed before, and then saying that well, these rights were always there, they were just not specifically stated.

As examples you cite the "right" to privacy and the "right" to an abortion. But the fact is that until Griswold there was no general "right to privacy." Yes, the 4th amendment guarantees security in one's "papers and effects" from "unreasonable searches and seizure," but this is a very specific protection of private property ("papers and effects") from two specific actions: unreasonable searches, and seizure, by the government. It is not some nebulous right that is "not specifically stated" but rather stems from the English common law right to private property. The Framers did not admit a general right to privacy as we understand the term today but rather a right to private property - a right which the Left would love to eviscerate. Privacy was to be understood as the right to private property.

So the right to "privacy" was created by the Court in Griswold. If there are unnamed rights in the constitution then the creation of rights are effectively limited only by the Court's imagination. That is the touchstone of liberal legal thinking. We, the Court, can create whatever rights we want, where none existed before, by saying that the rights are "not specifically stated", for example the right to a minimum wage, the right to food, the right to medical care, the right to a home, to clothing, to transportation, and the list goes on. In a liberal or left-wing judicial philosophy, all of these rights could be created by the Court out of whole cloth without the need for the people's elected representatives (how is that democracy?). Chief Justice Roberts unwittingly participated in this scheme by refusing to overturn Obamacare, a major mistake in an otherwise very good record. In some cases, such as Proposition 8 in California, the courts plainly overturn the will of the people. How? By simply inventing rights where none existed before. Justice Kennedy's majority opinion in Obergefell is shot through with this legal philosophy. I've read the opinion a couple of times. The opinion makes Justice Kennedy, the Court's left wing, and the proponents of same-sex marriage feel good about themselves. Chief Justice Roberts made it clear in his dissent that Justice Kennedy was essentially inventing the right to same-sex marriage out of whole cloth.

As for the "right" to an abortion, again, that didn't exist before 1973. And if you're going to say that the right to an abortion is a right "not specifically stated" in the constitution, again, where do you draw the line? What conceivable limits are there to the invention of new rights? If the judiciary is the creator of rights, then the Declaration of Independence which states that our rights come from "the Creator" [i.e. God] is wrong --- Constitutional rights now come from state and federal judges, not from the Creator. And more importantly, unelected state and federal judges can therefore unilaterally take them away as well (as a case in point, the number of recent rulings against the free exercise of religion on the part of Christian business owners, in flagrant violation of the 1st amendment).

So the question here isn't the right per se. I'm not arguing against having a right to privacy, against the right to an abortion, against what you would call rights "not specified in the Constitution" (either at the state or federal level). What I am arguing is who creates those rights - unelected judges or the people's representatives? It can't be argued with a straight face that, for example, a positive right to an abortion existed throughout the ages and the Court only just found out about it in 1973. This issue was, presumably, hotly debated before 1973 just as it continues to be debated today. This debate is a political debate, which in our system of government needs to be resolved by the people's political representatives in Congress, or in the state legislatures. According to conservative judicial thought, it's simply not a question for unelected judges to decide. It's not up to unelected judges to create a right to an abortion, just as it's not up to unelected judges to create a right to same-sex marriage where none existed throughout most of human history (and as I already said the comparison to interracial marriage is a false one). If there is to be a right to same-sex marriage - it should come from legislation passed by representatives elected by the people. The Chief Justice touched on this in his Obergefell dissent.

In the late 1970s or early 1980s a case was brought before the Supreme Court regarding same-sex marriage. The Court refused to hear it, issuing a one-sentence statement to the effect that it did not have the jurisdiction to hear the case. If it didn't have the jurisdiction to hear the case in 1977 or 1982, then why does it now have the power to invent the right to same-sex marriage in 2015, 33 years later? Who or what gave the Court that power? As with abortion, are you going to argue that the right to same sex marriage was an "unstated" right only just discovered by the great Justice Anthony Kennedy in 2015? Are we therefore saying that Justice Kennedy is a wiser, finer judge than all the justices who ever preceded him? Why didn't Justice Brandeis or Justice Cardozo find this "unstated right" in the 1930s? The answer is because the right to same-sex marriage isn't an unstated right at all -- it is a created right, created by Justice Kennedy and the liberal majority in the Obergefell 5-4 opinion.

It's a fair point to say that one shouldn't seek to find out the political persuasion of a judge prior to reading his cases. But "political status" as you call it is not irrelevant, because one's political views inform one's jurisprudence. Otherwise, we would not have conservative judges and liberal judges. We would just have judges. We would not have a 9th circuit court of appeals that is the most liberal, and the most overturned, appellate court in the country. We would simply have a-political circuit courts of appeal, who would decide most every case the same way...maybe that would actually be better for the cause of justice, who knows? But to the extent that political views frame a judge's overarching judicial philosophy, political views are very important. Justice Scalia ruled the way he did because he is a conservative, politically and judicially. Ruth Bader Ginsberg rules the way she does because she is a liberal, politically and judicially. With others such as Justice Kennedy, it's hard to tell which way he swings (which is why he is after the President probably the most powerful man in the country).

Being a strict constructionist (I think that's what you meant) doesn't mean that 100% of Scalia's cases are going to go one way or another. But the purpose of a judicial philosophy whether it be strict constructionism or the so-called "living constitution" theory is not to predict how a judge will rule in any individual case (this mistake is made in every single Senate confirmation hearing!!) but rather to serve as a rough guide to what the judge holds as axiomatic with respect to the law.

In any case, the big objection I have to Griswold, Roe, Obergefell, and cases like this, is that rights are created out of whole cloth by courts instead of passed by legislative bodies comprised of the elected representatives of the people.

If the "constitutional right" to an abortion for example is created by the Court, it can be taken away by a later Court. That contradicts the premise of rights in the Declaration, that unalienable rights come from not the government but from God. When we say that a right is a "Constitutional right" (a phrase that is thrown around far too much in my opinion) that has a very specific meaning - it means that we are declaring that the right cannot be taken away by government because it comes from God - the Creator. That's quite a statement.

I would be quite uncomfortable saying that my right to a home interest tax deduction is a Constitutional right - an inalienable right that comes from God. I am not sure to what extent God is interested in my federal income tax return or my deduction for interest on my mortgage.** So I don't consider the right to that deduction to be a "Constitutional right" colloquially speaking. It is a statutory right. It was granted by government and can be taken away by a later government. On the other hand my right to free speech is obviously a right that comes from God because God created mankind to be sentient, speaking beings. The ability to speak is fundamental to my existence as a human person (if you don't think so, try to go for whole day without uttering a single word, try to go a week without expressing a single idea). It is fundamental to life, liberty, and the pursuit of happiness. The home interest tax deduction is not. It is the same as the right to free exercise of religion, the right to private property and so on. (As a side note, notice that the right is "freedom of speech" not "freedom of expression," which is entirely different. Freedom of expression could mean, for example, the right to express oneself by destroying others' private property as rioters did in Baltimore in 2015 and as they do at Berkeley today. The mayor of Baltimore, Stephanie Rawlings-Blake, commented in 2015 that rioters needed "space to destroy" things. She later had to retract that remark.)

But consider the right to an abortion. What argument can be raised to say that the right to have an abortion comes from God? God is the author of life (John 10:10), and it's safe to say that the teaching of the Christian Church since time immemorial has been that abortion is a grave sin. So the right to abortion is not "Constitutional" in the sense that it is an inalienable right which comes from the Creator. If it is to be a right at all - it is at most a statutory right - a right that comes from government and can be taken away by government, according to the will of the people through their duly elected representatives. But liberal women's rights groups have made the right to have an abortion into a "Constitutional right", "inalienable," and essential to "life, liberty, and the pursuit of happiness." Really? Do you really buy into that on a moral and philosophical level -- that the right to an abortion is truly God-given and truly necessary for human life, freedom, and happiness? Maybe the Left does. I certainly don't.

Well that's all I have time for. I hope that helps you to understand how I think about the law.




*i.e. the constitution changes to adapt with the times, it means what the judge wants it to mean to support a certain outcome, usually but not always furthering issues of "social justice."

**Liberals would have us believe, on the other hand, that Trump's tax returns are at the top of God's to-do list!

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