Does a state have the power

[DKW 86 7,451]

LinkUnlike the first citation here, this one goes into a little depth. The terms "penumbra" & "paranumbra" were first implied with this case. Therefore, it is the foundation point of >50% of what Conservatives would call bad judicially activated "law" even though many cases (Abortion) have never been enacted by statute. That was the objection of Scalia and Thomas, this case was the groundwork for much of what is wrong in America today.

It reversed the concept of delineated powers to the Federal Govt. The court now holds that many powers, including the "Right to Privacy" that undergirds Abortion are part of the "the gaps, or "between the lines" of the rights actually written in or "enumerated" by the Constitution. Douglas wrote that the right to marital privacy is fundamental and lies between the gaps of the 1st, 3rd, 4th, 5th, and 9th Amendments."

Funny but this same "Right to Privacy" doesnt seem to be included when Clinton was in power, again see the Filegate Scandal.

Griswold v. Connecticut, 381 U.S. 470 (1965), [Transcript of Oral Argument] in striking down (7-2) a Connecticut law banning the distribution, use, etc., of contraceptives, the court, per Douglas, developed the "penumbra" ["shadow"] doctrine, which held that certain rights, though fundamental and not actually written in the Bill of Rights or the 14th Amendment, nonetheless exist in the Constitution and are enforceable against the federal and state governments. This doctrine states that new rights can be found between the gaps, or "between the lines" of the rights actually written in or "enumerated" by the Constitution. Douglas wrote that the right to marital privacy is fundamental and lies between the gaps of the 1st, 3rd, 4th, 5th, and 9th Amendments. Other Justices concurred centering particularly on the Due Process Clause of the 14th Amendment (Harlan and White) and the 9th Amendment (Goldberg) as the source of privacy. Black and Stewart dissented at length, holding that a right that is not in the Constitution can not be a "Constitutional right," and that just because a law is bad or stupid, does not make it "unconstitutional."

This case was the genesis of the "right to privacy," being the first time a majority of the court had embraced it. It also breathed new life into the doctrine of Substantive Due Process, which the court, per Black (8-1), had repudiated two years before in Ferguson v. Skrupa, 372 U.S. 726 (1962).  The court's aversion to the unveiled use of the Substantive Due Process doctrine is often suggested as the cause of the dissonance in the court's reasoning behind the privacy right.  In the 1910's, 20's and 30's, during the so called "Lochner-Era," the court struck down a wide variety of state economic reform legislation for violating a mythical 14th Amendment Due Process "Right to Contract."  By the mid-30's this had brought the court into wide disrepute, until, under intense pressure, the court finally repudiated the doctrine.  In Griswold, only two of the Justices actually use a direct Substantive Due Process theory as the basis for the Right to Privacy

[AUloggerhead 2,255]

One little problem with your post.  It's not true.  Brown was never elected to the California Supreme Court.  She was appointed.

160502[/snapback]

She was appointed in 1996 but faced CA voters in 1998 on a vote to retain or reject. She was voted overwhemingly (better than 3:1) to retain: 76% to 24%. Your observation that she wasn't elected is nothing more than meaningless semantics. She is "mainstream" in the most populous state in the country. Obviously, the voters in CA didn't think she was extremist when they voted for her to remain right where she was on the CA Supreme Court.

[TexasTiger 13,053]

One little problem with your post.  It's not true.  Brown was never elected to the California Supreme Court.  She was appointed.

160502[/snapback]

She was appointed in 1996 but faced CA voters in 1998 on a vote to retain or reject. She was voted overwhemingly (better than 3:1) to retain: 76% to 24%. Your observation that she wasn't elected is nothing more than meaningless semantics. She is "mainstream" in the most populous state in the country. Obviously, the voters in CA didn't think she was extremist when they voted for her to remain right where she was on the CA Supreme Court.

160522[/snapback]

Meaningless semantics? Only if you equate a vote to retain in which there is no opponent, and thus, generally, no one pointing out why folks shouldn't vote for you, and an election when voters have a choice between two or more candidates-- especially just 2 years after an appointment. Saddam's "elections" kinda worked that way, so if you think it is meaningless semantics, accordingy to you, he was the lawfully elected president of Iraq.

But even so, as poorly informed as most voters are about a candidate's record for any office, they are generally least informed about judges. How many voters have ever read a single decision of a serving justice in total? How many on this board have read an entire state court decision on any topic, or even a federal one, much less a truly representive sample of their decisions? The argument on whether someone is mainstream frankly requires an analysis of what they believe.

[AUloggerhead 2,255]

Meaningless semantics?  Only if you equate a vote to retain in which there is no opponent, and thus, generally, no one pointing out why folks shouldn't vote for you, and an election when voters have a choice between two or more candidates-- especially just 2 years after an appointment.  Saddam's "elections" kinda worked that way, so if you think it is meaningless semantics, accordingy to you, he was the lawfully elected president of Iraq.

But even so, as poorly informed as most voters are about a candidate's record for any office, they are generally least informed about judges.  How many voters have ever read a single decision of a serving justice in total?  How many on this board have read an entire state court decision on any topic, or even a federal one, much less a truly representive sample of their decisions?  The argument on whether someone is mainstream frankly requires an analysis of what they believe.

160524[/snapback]

The state of CA can set their own protocol for appointing/retaining their Supreme Court judges. If you have a problem with the way they do it, then take it up with them. The fact remains: Justice Brown faced the voters in 1998 and won a landslide vote of confidence by any measuring stick you can think of. In your case, the only one you could think to compare it to was Saddam Hussein's seizure of power in Iraq. ... mmm K.

[TexasTiger 13,053]

Meaningless semantics?  Only if you equate a vote to retain in which there is no opponent, and thus, generally, no one pointing out why folks shouldn't vote for you, and an election when voters have a choice between two or more candidates-- especially just 2 years after an appointment.   Saddam's "elections" kinda worked that way, so if you think it is meaningless semantics, accordingy to you, he was the lawfully elected president of Iraq.

But even so, as poorly informed as most voters are about a candidate's record for any office, they are generally least informed about judges.  How many voters have ever read a single decision of a serving justice in total?  How many on this board have read an entire state court decision on any topic, or even a federal one, much less a truly representive sample of their decisions?  The argument on whether someone is mainstream frankly requires an analysis of what they believe.

160524[/snapback]

The state of CA can set their own protocol for appointing/retaining their Supreme Court judges. If you have a problem with the way they do it, then take it up with them. The fact remains: Justice Brown faced the voters in 1998 and won a landslide vote of confidence by any measuring stick you can think of. In your case, the only one you could think to compare it to was Saddam Hussein's seizure of power in Iraq. ... mmm K.

160578[/snapback]

You totally missed the point. I wasn't criticizing the CA system in respect to judges. I think its about as good as there is at the state level.