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To: Texas Federalist
" agree. But that is exactly what Randy is advocating"

From the article:
"The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government?"

Madison's is the first "majoritarian conservatism" view: that there are rights that the court has to recognize.

Randy is advocating the second view: "libertarian conservatism", which lets the courts define what the rights are.

Hardwick V. shows the constitutional application of the Ninth to look for a right to recognize; Lawrence V. could be done under the Ninth in Randy's view- just define it as a right.

Lawrence includes the usual complaint of the living constitutionalist's that they can't use the Ninth as Randy wants, but must maneuver their opinion through by other means. Griswold includes the LC's complaint about not being able to use the Ninth too.

Yeah, they do terrible damage already without reversing the meaning of the Ninth, but what could they not do if they did?

29 posted on 06/07/2004 4:44:18 PM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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To: mrsmith

If you actually read his book, you would see that he does not advocate the Court's defining rights - they are already defined. You really have to read his whole book. Once you do, there are some legitimate criticisms that you can make relating to the judiciary's role. But I think you are unduly attributing a philosophy of traditional libertarian "judicial activism" to a writer and professor who I know to be more skeptical of the judiciary than probably even you or me.


41 posted on 06/07/2004 8:27:32 PM PDT by Texas Federalist
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