Tuesday, November 01, 2005

One person

Whenever righties start bitching about how the courts are overturning the will of the majority, my first response is, "Well, yeah. That's what they're supposed to do."

Our founding fathers saw that a democracy could lead to all sorts of bad things if allowed to act solely in a "majority rules" manner. The Bill of Rights was created to prevent this from happening. The majority cannot overrule the rights as delineated in that document or which extend logically from that document. It's the Supreme Court's job to decide what those are.

Then, for God's sake, why would we put someone on the court who doesn't understand that the number of people being deprived of a right is irrelevant to whether or not they should be allowed to exercise that right? (PDF link.) Here's Alito in his dissent in the case of Planned Parenthood v. Casey.
Since the laws at issue in those cases had inhibiting effects that almost certainly were substantial enough to dissuade some women from obtaining abortions, it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown...

At the outset, it is apparent that two factors imposed a low ceiling on any showing that the plaintiffs could have made. First, as the district court found, the “vast majority” of married women voluntarily inform their husbands before seeking an abortion. Indeed, in the trial testimony on which the district court relied, the plaintiffs’ witness stated that in her experience 95% of married women notify their husbands. Second, the overwhelming majority of abortions are sought by unmarried women. Thus, it is immediately apparent that Section 3209 cannot affect more than about 5% of married women seeking abortions or an even smaller percentage of all women desiring abortions.

Since 1973, abortions on unmarried women have consistently exceeded 70% of the national total and at times have surpassed 80%. United States Department of Commerce, Statistical Abstract of the United States 1990 at 71.

The plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by Section 3209.
By Alito's reasoning, couldn't someone, say, write a law which says that free speech doesn't apply to speakers of the nearly-dead languages of Maribe or Deitch or Cherokee? After all, those laws would only hurt a very few people.

Shouldn't we, as Americans, be concerned if even a single person is deprived of his or her rights? This seems very simple to me, but, you know, I'm not a judge.

Update: Someone's always said it sooner and better.
The intent of the "founders" is not generally a reliable canon of constitutional interpretation. The historical record is mixed, ambiguities abound, the founders' individual brilliance, prolixity, and eloquence necessarily result in an often inconsistent variety of expressed views.

Moreover, the critics often forget their basic history -- the Court is, by nature, a contrary institution. It was designed (and here the intent of the founders is clear) to tack into the wind, to oppose on frequent occasion the popular sentiment of the day. Were the Court to echo the passions of the New Right, one has to wonder why we bother to submit the legislative process to judicial review in the first instance. (We are almost unique in the world in our insistence on this institution and, thus, it must be viewed as a precious and potentially endangered species).
-Joseph W. Bartlett. "High Court's New Right Critics Misconstrue History." May 26, 1986.


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