It's popular to attack any ruling by the Supreme Court a person doesn't like as "legislating from the bench". That's probably the single most popular attack, claiming that judges are not following the constitution, just making up laws.
There's a little secret to let anyone in on who says this: the constitution doesn't have the specific answers to almost anything. It's made to be a very non-specific set of guidelines and to leave a lot of room for society to interpret it to meet our current
needs.
But that doesn't mean that almost anything is allowed. It means that words need to be understood as the world changes. That there are things like the 'spirit' of the constitution that do apply to accurately following it. That's why topics like whether birth control pills can be banned - something the founding fathers neither imagined nor addressed - need to look to the larger intent of the constitution to see whether it has guidance.
And the people who accused judge of 'inventing rights' need to be told, that there's a good chance that inventing rights is just what the constitution said to do. The 9th and 10th amendments make it clear that there are almost unlimited rights that are protected by the constitution that are not specified in it - that they were hesitant to specify any rights specifically because they didn't want other rights to lose protection by not being mentioned.
So it's the people arguing AGAINST recognizing unspecified right who are violating the constitution, denying its demand for unspecified rights to be protected.
But since they are unspecified, it leaves the issue open to being politicized especially easily - as it was with birth control pills. If many voters want the constitution to say something there will be politicians who agree it says that - and who appoint judged who say it does as well. Since Nixon Republicans have wanted judges who allow money to corrupt our democracy - and that's exactly what the constitution now says, according to the often 5-4 rulings saying so.
This thread is to discuss something else, though, an example involving what rights mean.
People like to be absolutist about rights when it suits them. But no right in the constitution is absolute. That makes people wonder, then where is the line drawn for unspecified exceptions?
Let's use the right in the first amendment, probably the most famous in the constitution: it's stated in absolute terms, simply that "Congress shall make no law... abridging the freedom of speech". No limits or exceptions are listed.
So doesn't that mean, no exceptions? Isn't that clear? Why do judges get to take it on themselves to just make up exceptions not listed in the constitution? Isn't that legislating from the bench and denying you your rights?
Well, maybe it is. Early on - the second president - they did pass a law jailing people who criticized the president, John Adams, and that's a pretty clear violation. But the next president got rid of it, and it's pretty much agreed not to do that.
So, if the right is absolute, then you have the right to:
- Lie under oath
- Threaten the president
- Offer money to others to commit murder (as opposed to the act of actually paying them)
- Describe a dangerous product as safe
- Commit slander and libel
- Scream profanity on public television
- Yell fire in a crowded theater
We could think of many more examples.
Should all of those be legal, immune from any law limiting them (put aside the distinction of federal and state for now)?
This is where judges come in - trying to determine how to protect the right that was meant to be protected, while not allowing abuse of the right that was not the intent. The answer to those lines is not in the constitution, as much as people with
opinions want to say their opinion is there.
This is where they have to determine things such as what is the most protected speech (political), and difference classes of speech (from casual to commercial and others) and appropriate protections for each, and to look at competing rights and determine which will prevail.
And that can be done well or poorly.
For example, in some states with a strong agricultural industry, citizens concerned about the welfare of animals can want to publish facts and pictures about harm to the animals to raise public awareness. But politiicans funded by the industry pass laws prohibiting them from doing so (they're called 'ag-gag' laws); Texas famously had a law allowing people to be sued for saying bad things about beef as I recall.
Aren't those abuses of people's rights?
So judges need to determine which speech is intended to be protected - such as political opinions - and which is not. And that included considering things like whether the act of burning the flag is an act in the spirit of political speech, demanding protection (it's been ruled it is, while many politicians sided with public opinion claiming the constitution does not protect that).
It's not practical or desirable to try to write down a rule for every sentence someone can say and whether it's protected in the constitution. This is why we have a legal system and rulings to create rules as needed, and doing so is not unconstitutional, it's the very branch the constitution created to do just that.
It is possible for judges to do that as intended and for citizens to accuse them of 'legislating from the bench'; and it's possible for judges to do it badly, to suit an agenda of their own, or powerful interests, or mobs, and get praised for it.
That's the bottom line - the constitution means what people decide it means.
That's not very reassuring, but it's the case. Which is why we need to have judges more than less 'impartial' trying to serve the lw rather than the political interests.
I'd say that unfortunately, today we have the right at war with the constitution - the federalist society creates their army of lawyers and judges to reinterpret the constitution to fit their radial agenda of plutocracy. And they're getting away with it.
But the point here was to try to help people think about what the rights in the constitution mean.
Rights like free speech aren't going anywhere - but what they actually mean can change. And what they should mean can change as well, as we go from the society of the founding father with countless newspapers and opinions to our modern society where 'speech' of individuals is in a society of mass media controlled 90% by four mega corporations - in a time right now where free speech is affected by issues such as net neutrality.
