...and there goes another dollar.

Ace, for what it's worth, at least she supports changing the law by means of the legislative branch rather than through the courts.

Don't worry. Even as we speak, she's boning up on all this shit.

Nice post here by Podhoretz.

Not that I disagree with your point, but what office was she running for? The only things I saw her elected to were President of her firm and then to President of different Bar Associations (first Dallas then Texas). I doubt her abortion stance for those offices was calculated on Texas being a pro-life state.

I'm worried that Harriet Miers is going to win the poetry contest.

Dammit Allah, you beat me to the punch RE: Podhoretz.

That Corner bit SCARED ME. Like, seriously scared me. Hockey-mask-and-knife frightening.

This is the best we can do? Hell, *I* could talk about Griswold, and that's just from the Con Law classes I slept/drank through over a decade ago.

Sigh.

Cheers,
Dave at Garfield Ridge

P.S. BTW, I'm enjoy Monty's "Reverse Fundraiser" here. I'm sure by the end of the week, Ace will owe *Monty* money.

Harry Reid just reaffirmed his support for her. Granted, he's pro-life, but he's also up for re-election in a highly divided state.

"I do wonder this about the Court. In some rare cases, there will be laws which most of society feels are perfectly ass and yet they never get repealed, because few politicians are willing to take up the grand cause of free access to dildos."

True enough, but that same political pressure tends to keep pragmatic prosecutors and cops from enforcing those law, and that's another perfectly constitutional, democratically-responsive solution.

The fact is that a law may be completely stupid in every way imaginable, and still constitutional. But "stupidity" is no intellectually rigorous basis for overturning laws.

What she will do on the court when left to her own "conscience" remains anyone's guess.

Ultimately, that's always the case.

Non-prosecution of these "crimes" isn't really a solution, because the activity is still prohibited. You're still taking a chance, and many pharmacists, for example, wouldn't risk their business by carrrying condoms in a state prohibiting contraceptives.

I agree that the liberals have made the term "constitutional" synonymous with "Good pubic policy," and conservatives know the difference between "unconstitutional" and "just a bad law."

Still, I don't think it would be hard for me to come up with hypotheticals of laws so bad -- such as purely race-neutral ban on any interracial marriage -- that don't actually implicate a specific clause of the constitution and yet are obviously antithetical to its spirit.

Is a constitutional 'spirit' sort of like its penumbra?

don't actually implicate a specific clause of the constitution and yet are obviously antithetical to its spirit.

Chuck Schumer couldn't have said it any better. You're grasping for constitutional straws here to justify invalidating a law you disagree with -- which is precisely what you slammed the liberals on the Court for doing in your Miers post yesterday.

If the public wants to repeal an anti-contraception but its representatives are too embarrassed to do it, then the answer is to elect new representatives. And if the public is too embarrassed to elect representatives who'd repeal the law, then fuck the public. You get what you're willing to pay for. You don't try to make an end-run around the process by booting the issue to the courts.

The fact is, anyone who opposes Roe on grounds that there's no explicit right of privacy in the Constitution is pretty much stuck with opposing Griswold too. Trying to distinguish between them almost always results in sophistry.

Ace: I remember going over this exact point with you in the past, and I guess neither of us has cahnged out opinions, though I recognize your good faith beef - 'how much bad shit can we accept from democracy before we throw up our hands and say, you'know what -screw you. You people are fuckin asses and sometimes they need philospher kings!'

Allah says it better than I. And I'll admit, just cause it's democratically decided doesn't make it morally ok (Nazi's anyone?((and not looking for a fight on that issue, just assuming arguendo they were voted in and did what they did through the process of law)) But the underlying issue is who has the power, ME (and my idiot brothers) or the Kings? Sometimes we make bad decisions, but it's more important, long run, short run, that WE make the decisions.

"Still, I don't think it would be hard for me to come up with hypotheticals of laws so bad -- such as purely race-neutral ban on any interracial marriage -- that don't actually implicate a specific clause of the constitution..."

That's not a hypothetical, that's Loving v. Virginia, 388 U.S. 1 (1967).

The problem with your approach is that it allows -- and I agree with you, we're talking about some extremely eggregious hypos -- the Supreme Court to tell us what to do "for our own good." Your proposed Vermont law? Yes, that would suck. In so many ways would that suck. But, dissenting Vermonters can always vote with their feet, yes?

More importantly is the principle is that people always deserve the government they elect. If Vermont consistently votes in people so ridiculous that such a law gets passed, then they deserve ridiculous laws. Plain and simple.

I don't want the jurisprudentially elite saving me from myself.

"How does one argue there is no "right to privacy" in the Constitution while also sort of agreeing with the (softer form of the) liberal position on this-- that the, ahem, "spirit of the Constitution" is generally one of freedom from government coercion in most matters except those directly harming other people or society generally?"

And that's one of the issues - abortion can be seen as "directly harming other people," that person being inside another person, the mother. So once again, whose life and liberty are we seeing as the compelling interest?

And that has nothing to do with privacy, but given two opposing desires - on the one side, an implied desire to have life (to be born) and on the other, the desire not to give life (for whatever reason) - the legislatures and courts are forced to play Solomon and decide whose desire is preeminent.

I see Allah and Doc made some of my same points, only faster.

How does one argue there is no "right to privacy" in the Constitution while also sort of agreeing with the (softer form of the) liberal position on this-- that the, ahem, "spirit of the Constitution" is generally one of freedom from government coercion in most matters except those directly harming other people or society generally?

One doesn't make that argument. One stands on the proposition that the federal powers are ennumerated and the rest are preserved to the states and to the people under the 10th Amendment. After that, it's all democratic accountability. Works pretty well, too.

Non-prosecution of these "crimes" isn't really a solution, because the activity is still prohibited. You're still taking a chance, and many pharmacists, for example, wouldn't risk their business by carrrying condoms in a state prohibiting contraceptives.

The history behind Griswald would suggest otherwise. The law had not been enforced in ages and at least some prosecutors were surprised to discover it even existed. The underlying facts were completely ginned up as a matter of theater to give standing for an argument basically extending Skinner. The Court's outrage over jackboots on bedroom doors notwithstanding, the actual "wrong" to be redressed was a complete fabrication.

I don't think it would be hard for me to come up with hypotheticals of laws so bad -- such as purely race-neutral ban on any interracial marriage -- that don't actually implicate a specific clause of the constitution and yet are obviously antithetical to its spirit.

Huh? What on earth would THAT law look like? It sounds to me like the losing argument in Loving, but I might just suffer from a poor imagination.

There can be no judicially cognizable "spirit of the Constitution" until the Constitution itself is safely dead.

Ace, our system is based on trusting the people to govern themselves wisely. That trust pays off a hell of a lot more than whatever the second best idea has been.

VRWC;

Another 'pro-privacy, anti-Roe' approach is:

The _fetus_ has not had _its_ due process rights respected.

You can execute the fetus in precisely the same way you get a serial killer executed - trial, retrial, appeal, Supreme Court, reappeal, re-Supreme Court, plead with the Governor not to pardon.

Not arguing for that interpretation, but there's more ways to shoot down Roe than there is penumbra protecting it.

Sorry about the duplication with some of the briefer (and no doubt wiser) posters who got in while I was typing.

Miers also said, in 1992,

When you understand, as I do, that the choice issue is inextricably entwined with the debate of total freedom for women, for empowerment, you fully understand the depth of caring and emotion which accompany the efforts like those in support of this resolution.

Another 'pro-privacy, anti-Roe' approach is:

The _fetus_ has not had _its_ due process rights respected.

Only if you are talking about (a) the government performing the abortions or (b) Substantive (spit!) Due Process, Al. The latter is such an open box of judicial invention, there isn't much you can't put in there. One good clue that it doesn't actually exist.

"Is there absolutely no room at all for any kind of substantive due process analysis from the right?"

I have no problem with the substantive due process part, but how about the analysis? Where do you even start? How do you draw the line between a really, really, really bad law (constitutional) and a really, really, really, really bad law (unconstitutional)? If there were parameters, some kind of guidance, then sure enough we could have analysis.

But the Griswold/Roe problem is that there is no analysis. What is there to analyze?

Ace, as a gesture of respect for your argument I can give you the statute in Skinner as a possible example of what you want to call a law too dumb to be constitutional. Under that law (in OK, wasn't it?), repeat felons were to be sterilized since science of the time suggested that felonious behavior was passing from parents to children. I find nothing in the Constitution to forbid such a law.

Would this be a good example of what you want to offer? If so, do states constitutionally have the power to send up felons for life after a certain number of convictions? And if this is so, does a lifetime of imprisonment among one's own sex impair the old reproductive options? I'm just askin'.

The Constitution says what it says and what it says embodies a super-majoritarian consent of the people. Regardless of whether I agree with what the people consent to, I do not believe you can find a more legitimate source for law.

Don't worry. Even as we speak, she's boning up on all this shit.

Wow. More unrecorded, therefore, unverifiable, quotes taken out of God knows what context to criticize Miers. I'm so unimpressed.

Let stupid laws stand until the voters do something about them. That's why we have local, state and federal legislatures. It also sends a reminder to citizens that they have to get off their asses and participate in the system, and not just lay about until the courts ordain the social changes they prefer.

If a citizen finds a law unbearably obnoxious, he has the right to move to another state. In the meantime, the use of the federal courts as a bludgeon to smash away laws one doesn't like is quite nearly the worst of all possible alternatives.

Dr. Reo Symes wants to know if this "spirit" of the Constitution is like a "penumbra." Well, yes, and I say so in the post

Ah, yes. I see that now. Please disregard my loose snark in reply. Need to read what you actually write before I try to make my oh-so-clever points.

repeat felons were to be sterilized since science of the time suggested that felonious behavior was passing from parents to children. I find nothing in the Constitution to forbid such a law

I believe cruel and unusual would apply

"Cruel and unusual" is exactly right, because that clause expressly governs punishment, and that's what Skinner was all about -- a criminal law prescribing a certain form of punishment.

But the Supremes looked at the thing through an Equal Protection lense.

Sobek:

But "stupidity" is no intellectually rigorous basis for overturning laws.

According to current Supreme Court doctrine, it is. The Courts make paeans to the idea that they don't judge the wisdom of laws. But every statute that makes a classification (which is pretty much all laws) must pass at least a "rational basis" test. That test requires that the law have some rational relationship to a legitimate governmental objective. For example, the Courts would probably strike down a law that prohibited wearing the color purple on Fridays because it causes excessive rain.

This is supposed to be a very easy test to pass. But as with most powers the Courts have given themselves, this power has been over-extended. For example, the Court used a rational basis test in Lawrence v. Texas to overturn Texas's anti-homosexual sodomy statute. And in Deweese v. Palm Beach, the 11th Circuit overturned a law prohibiting jogging without a shirt because it bore no rational relationship to the town's stated interest in "maintaining the Town's identity, history, tradition, and quality of life."

Stupid laws, yes. But unconstitutional? I have a feeling our Founding Fathers would be surprised that they were drafting a document that would protect homosexual sodomy and jogging without a shirt.

And Ace, the reason to oppose all judicial activism, even when it's against laws that are ridiculously dumb, is that if we now allow unelected representatives to change laws that disagree with our policy preferences, then we're a) effectively allowing judges to make laws that lack the legitimacy offered by the democratic processes; b) breaking the rules of governance to which we as a society agreed to hundreds of years ago; and c) making it much harder to overturn those rules, should our ideas on the wisdom of those laws change.

blancobrawler, Miers has served in a couple of elected posts, including State Bar and Dallas Bar President, and she served a couple terms on the Dallas City Council. Here's a list of her career highlights.

I believe cruel and unusual would apply

As my follow up questions should imply, I'm not persuaded that argument holds up. If it is "cruel" to sterilize a habiltual felon on the grounds that it's not nice to terminate a person's ability to have offspring, what of life sentences? The constitutional clause in question derives from a hardier time where felons were regulaly hanged and common punishments for lesser infractions included nostril slitting, ear nailing (I'm still a fan of that one), branding and the stocks.

Our present sensitivities are a much bigger restraint on criminal punishment than the popular consent embodied in the 8th Amendment.

The Privileges or Immunities Clause of the 14th Amendment is what you're looking for. Substantive due process -- which is utter nonsense -- only arose after the Supreme Court screwed the pooch in the Slaughterhouse Cases and gutted the Privileges or Immunities Clause.

Here's what I don't get about Griswold: even if one buys the penumbra argument, how does one get to a general right to privacy?

The first two amendments are really not about privacy at all; even the third is more about property rights than privacy.

Whereas the next five are -- but about a very specific type of privacy: namely, privacy vis-a-vis the judiciary system. They limit what cops, prosecutors, judges, etc. can do while enforcing laws; they do not limit what sorts of laws legislators can write.

So I can see how the penumbra emanating from those amendments would include, say, Miranda. But Griswold?

Let's say a very-liberal state, like Vermont -- "for the children" --mandated "compatibility screening" before issuing marriage licenses, and required hours and hours of "sensitivity and interpersonal skills" training and "don't punch your wife" classes as well. And maybe some community service, too, on the theory that 1, you're getting state benefits from marriage and ought to "give back" and 2, that a strong community spirit will help foster a strong marriage.

Shoot, that's what state's rights are all about. If their laws aren't violating the Constitution -- not the spirit, the actual Constitution -- they can do whatever the heck they want. I just suggest you don't go live in Vermont.

You don't have a right to "privately" commit a crime -- like killing someone -- so even if a right to privacy exists, the real issue is whether or not a fetus has autonomy...and shouldn't that be decided in the courts? The Constitution exists to guarantee rights, not define boundaries.

The Privileges or Immunities Clause of the 14th Amendment is what you're looking for.

The history is right and the clause itself is even functionally superior since it has some ascertainable meaning. But when the amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," I don't see any basis for interpreting this to include "reproductive freedom."

Oh, pleeeeease. Don't go all weak-kneed on us. All the rights you'll ever need are in the 9th Amendment, and all the power you'll ever need to prevent "Sex Nannies" (and anything else) is found in the 10th! That's the whole point! We don't need ANY fake penumbras when the Founders gave us everything we need right there. I swear, sometimes I think people read the 5th Amendment where it says they have a right to remain silent and decide, "Hey, I'd better stop reading here before I get in trouble." It's almost like the 9th and 10th don't even exist.

I'll admit, just cause it's democratically decided doesn't make it morally ok (Nazi's anyone?)

Oh Lord, he's gone totally lib and is starting to repeat their nonsense.

Stumbo:

Here's what I don't get about Griswold: even if one buys the penumbra argument, how does one get to a general right to privacy?

The "right to privacy" is just shorthand for what the Justices actually found emanating from the Constitution. As Justice Brandies wrote in his dissent in Olmstead v. US, it's actually about a right "to be left alone" by the government. Here's the relevant passage:

"The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect. Every violation of the right to privacy must be deemed a violation of the Fourth Amendment."

So the right to privacy isn't really about public display of personal things, it's about certain areas of our lives upon which the government can't intrude.

The Constitution exists to guarantee rights, not define boundaries.

Bbeck, for the most part, I think it exists to define the boundaries and workings of government, mostly the federal government, frequently in protection of our pre-existing rights. It's about delegation and limitation, not an affirmative charge to go out and guaranty individual rights. (The 13th Amendment, being binding on us individually, is an exception to the general rule.)

TBR: All the rights you'll ever need are in the 9th Amendment, and all the power you'll ever need to prevent "Sex Nannies" (and anything else) is found in the 10th!

Uhh, no. Those amendments are complete gibberish unless read as they were intended - as rules of construction.

The 9th says that just because rights aren't singled out for protection does not mean the feds can infringe upon them with unennumerated powers. The Federalists had argued that listing rights in the other amendments was a bad idea because it could be construed as a grant of open-ended power to the feds in any area not affirmatively protected. The 9th Amendment was offered to address this by saying that the absence of an enunciated right does not create a vacuum to be filled by federal power.

The 10th further affirms that if a power isn't ennumerated, it is not granted to the feds. Both amendments affirm that the federal government is one of only specifically delegated powers and that the other amendments of the Bill of Rights should be read as a further statement of what those ennumerated powers may not do, not an implied statement of things it can do that aren't listed in the body of the Constitution.

I really don't give a rat's patooty if she would repeal Roe or not. What I am interested in is if she would support the document (Constitution) as written. If she does, Roe will be taken care of, along with a truckload of other manure the Federal courts have dumped on the citizens in the past 165 years.

As far as Roe goes, I have no doubt that the moonhowlers in my state (Oregon) would pass an abortion law allowing abortion 15 minutes after birth in a hot minute, but my point is that it's the STATE'S issue, not the Feds. How hard is it to connect those dots when reading what is really simple language that's been convoluted by the courts so badly one can hardly tell what anything means any more?

Carlos,

I agree that the basic work of constitutional interpretation shouldn't take a rocket scientist. It's no work for an airhead, but intellectual gymnastic abilities mainly come into play when someone is trying to square a circle. Or, in Scalia's case, calling bullshit on people who are trying to square the circle. The latter is fun, but it isn't as if you could shame a lib into being honest. That's the main reason I'd be happy with Meiers if she is just intellectually honest and committed to interpreting the actual law in front of her. The verbal fireworks are not that crucial.

Comish:

"But "stupidity" is no intellectually rigorous basis for overturning laws."
"According to current Supreme Court doctrine, it is."

You're confusing "current Supreme Court doctrine" with "intellectually rigorous."

Yes, rational basis review is the low-level standard for Equal Protection and substantive Due Process, but that's not to say those laws which fail rational basis review are based on "stupidity," necessarily. It means that what the legislature says it wants to accomplish can't be accomplished that way (and suggests the legislature has an ulterior motive).

"This is supposed to be a very easy test to pass. But as with most powers the Courts have given themselves, this power has been over-extended. For example, the Court used a rational basis test in Lawrence v. Texas to overturn Texas's anti-homosexual sodomy statute."

It was also the basis in Romer v. Evans. And, more notably, in City of Cleburne.

VRWC,

"As my follow up questions should imply, I'm not persuaded that argument holds up. If it is "cruel" to sterilize a habiltual felon on the grounds that it's not nice to terminate a person's ability to have offspring, what of life sentences? "

It's not cruel because it's not nice, it's cruel because it's not at all related to any valid penalogical theory. We throw people in jail for life, at least in part, to keep him off the streets and thereby protect others. But the Skinner law was based on the theory that criminality could be inherited as easily as eye-color or height. Where the theory is bunk, enforcement of the statute is cruel.

Incidentally, I think "cruel and unusual" is one clause of the Constitution where originalism does not apply. Equal is equal, regardless of the century. But cruel is cruel depending only and entirely upon what Americans think "cruel" means at any given moment. It is an inherently subjective and flexible term, and therefore to be measured according to subjective factors.

Commish and Sobek, for the sake of clarity, let's not treat the two "rational basis" standards as if they were a single standard. There is the "laugh test" rational basis that usually gets applied and there is the "rational basis with teeth" that gets applied when the Court is sympathetic to the complaining party. The former is deferential. The latter, as the Commish implied, is usually an insulting unconstitutional usurpation.

I think "cruel and unusual" is one clause of the Constitution where originalism does not apply.

I think that's the basis of our difference. Without originalism, there is no judicially cognizable standard that can be realistically applied and you are offering yourself to a black robed master.

cruel is cruel depending only and entirely upon what Americans think "cruel" means at any given moment.

Then it is hard to see what popularly adopted statute would be struck down by the clause. This interpretation would allow any punishment, no matter how inhumane, to survive as long as it was popular at the moment. And it would thwart only such punishments as the elected branches would already be getting rid of. A perfectly useless constitutional "protection."

I'm sticking with originalism on this.

Actually, Justice Thomas made an argument that would seem to answer your question, ace, in the Texas Sodomy case. He said, basically, that he would not have voted for the law prohibiting sodomy, that he felt it was a silly law, but that nothing in the Constitution prohibited the people of Texas from pasing such a law.

And he's exactly right.

The Constitution isn't a blanket. It doesn't protect you from everything a government may do. It covers the big things: making sure the Feds don't set up the First Church of America, stopping them from grabbing you up in the middle of the night and tossing you in jail without charges, preventing them from torturing you to death for a crime, and so on. It doesn't cover the smaller things - the stuff that defines a community or a state. It says, essentially, that we are all grown adults with the right to vote and to petition our government and that we can sort all of that stuff out for ourselves.

The problem is, once you allow a teensy penumbra, there's no rational way you can stop it from becoming larger and larger until you can't turn around without bumping into an emanation. The Constitution specifically says not to do that. It amazes me that we're managed to do otherwise in this country.

I'd much rather have some temporary, local "ass" laws, than nearly permanent legislation by the Supreme Court that apply throughout the land cannot be overturned by an elected legislature.

Just how bad is judicial activism, anyway?

It seems pretty useful to me to have a branch of government that strikes down laws. Nine times out of ten, getting rid of a law will improve matters, and the other time, you've pretty much got a slam-dunk supermajority for passing a Constitutional Amendment if the justices get stupid.

What we're suffering from these days is insufficient judicial activism. Congress says that they can regulate anything that might possibly influence someone's decision to trade something across state lines or anything that might "affect" the transaction in any way. Congress passes thousands of laws under this bullshit theory, and the Supremes just let it pass.

The original Prohibitionists, living in a time when we and the Supremes all had more respect for the document, realized that they'd have to get a Constitutional Amendment passed to enact their nutty scheme to outlaw drinking nationwide. They get their Amendment, homicide rates skyrocket, the American people reconsider, and the Amendment is repealed. Then Congress turns around and, without any sort of Amendment or Constitutional authority, does the same damn thing with different recreational substances.

And now executive agencies have the power to make their own laws, and punish people under them without an actual trial. They can forbid all manner of speech and impose all sorts of conditions on the content of said speech, among countless other powers that they derive from...., well, from out of their asses as far as I can tell. And the Supreme Court's response? Nada.

So a lot more judicial activism is called for. Let's not be stupid and argue that judicial activism is bad, or the Dark Side will throw it in our faces when we finally get a court that engages in some long-overdue activism.

Jesus, Ken! "Judicial activism" doesn't mean striking down laws. If it did, I'd be all for it. It means squinting, turning your head on one side, shutting an eye and finding all sorts of wild-assed shit in the constitution that isn't really there but somebody thinks ought to be.

Bedrock: the constitution is the list of the most basic rules we all agree to abide by. Despite the best efforts of law professors, they're pretty simple to understand. We are a mongrel nation, made up of people from all sorts of places and all sorts of races who came here for various reasons at various points in the country's history. Mentally signing onto that document is one of the few characteristics Americans share.

We can change the document if it becomes necessary, but that requires an extraordinary effort and a huge sign-on by all of us. And rightly so. If it were easy to change, the damn thing would be all over the place and more of us wouldn't find it worth sticking to. Pulling constitutional law out of your bottom will not do, even if it is a very sophisticated and educated bottom. If if the stuff you're pulling out is agreeable to me.

None but the moonbattiest leftist rejects the constitution outright; they wrangle about meanings or ways to amend it, but few turn their backs. Except by the stealthy method of getting their own on the high court and "finding" law, like easter eggs, in the constitution. Bad! Bad bad! Bad judicial activism!

Agent, care to explain how you contradict anything I've said? My point is simply that there's no need to resort to the contrived nonsense of activism (as Ace seems to endorse by opening the barn door to "minor, tiny little weak-form penumbras and emanations") when the 9th protects the rights we retain and the 10th protects the power of the States.

A concrete example: the "right" to an abortion is "retained" by the people under the 9th, when a State passes no law against it, granted under the 10th. And in no way, shape, or form, has the Supreme Court, Congress, or the President got anything to do with abortion in any case, because it's not a delegated power of the Feds.

It's all in there, and you don't have to mangle the 14th or any other amendment to find it - and without any "minor, tiny little weak-form penumbras and emanations". Give 'em an inch and we might as well burn the whole document, because it's meaningless.

VRWC: I'd be happy if she (Miers) was intellectually honest and committed to interpreting the actual law in front of her, too. The problem is, no one knows if she will. And I do mean absolutely no one.

It's not like when Scalia was nominated, or Thomas, or even the recently departed Mr. R. They all had track records, records that could be looked at and discussed and dissected. This woman has incredibly little that can be looked at, even less that can be counted upon.

If W had kept his word about being a conservative (you know, little things like controlling the budget and hiring 10,000 border agents and such like), I'd be a lot closer to trusting his word. But a dishonest man, while telling the truth occasionally, should not be trusted without verification ever.

Agent, care to explain how you contradict anything I've said? My point is simply that there's no need to resort to the contrived nonsense of activism (as Ace seems to endorse by opening the barn door to "minor, tiny little weak-form penumbras and emanations") when the 9th protects the rights we retain and the 10th protects the power of the States.

Probably just a miscommunication. Based on what your reply, I'd hazard a guess that your other post was refering to some sort of "conservative activism," which as far as I can see is not only a myth but an oxymoron, instead of the judicial activism that actually exists ("penumbras," "Substantive Due Process," etc.). Would that be accurate? If so, I apologize for misunderstanding what you were aiming at with "activism," "sex nannies" and the like.

" ," you are right that nobody knows. And I'll raise you one that we have had bad experiences with cyphers. Buuuuut:

If W had kept his word about being a conservative (you know, little things like controlling the budget and hiring 10,000 border agents and such like), I'd be a lot closer to trusting his word.

We remember this differently. I don't remember Bush ever holding himself out as a small government conservative, as aggressive with our borders or as a fiscal tightwad. I'd love it of he were those things and would have voted more cheerfully if he had just promised them. But he never did. He said what he was from the start and we all winced, remember?

He's disappointing in some ways. But not dishonest. On this issue, he has shown that he understands what we want and has said he will deliver.

He's pissed me off being honest about what he would deliver (big spending) and he's pleased me being honest about what he would deliver (Iraq). He strikes me as exceptionally honest that way. He understands what he's promising and made a big deal about promising it.

Individual call. I'm giving him the trust until he shows me I shouldn't. Especially when he effectively looks me in the eye and says, "Just trust me on this one, OK?" It's not like he's an unknown.

Black Republican has it exactly right.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

What else do you need to know?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Unfortunately that hasn't saved us from the Commerce Clause or Kelo.

And thats the reason why the witches at NOW will oppse her nomination and the same for Planned Parenthood and the ACLU