Supreme Court Nominee John Roberts On Rights

That’s an issue that’s on everyone’s mind and so far one key opinion the man holds has become clear. He’s doesn’t like the term “fundamental rights” -- especially as applied to court interpretations.

The problem here, as I see it, as that the constitution seems to support them! I site Amendment IX:

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

On a repeated basis, although in most instances his words were the opinion of a lawyer working for someone whose point of view he was trying to uphold argumentatively. For example he has stated to President Reagan, acting as one of his counsel members, that “there of course is no such right", on the wording of a housing bill that included the statement of "fundamental right to be free from discrimination.”

In a court decision Roberts wrote: "All of us, for example, may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

Once again, the constitution says that: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. “ This means that the Constitution does not limit the number of rights to those specified and the states and people may retain other rights not listed. It can then be up to both the legislature and the courts to decide if, indeed, such a right exists.

Amendment X can clarify things even further: “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. “

Here it says if it’s missing from the constitution, but not otherwise prohibited from the constitution, then the people and the states can enjoy those powers.

Amendment V further says: “No person shall ... be compelled ... to be a witness against himself”

Amendment IV adds: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...”

Article IV of the constitution, itself, further states: “but no religious test shall ever be required as a qualification to any office or public trust under the United States. “

This establishes freedom from religion as well as enforcing the rights to privacy, your right not to disclose your feeling or views on religion as a part of holding office in the U.S. Government.

Obviously at least a limited right to privacy is assured by Constitution edict and Amendment IX leaves open the door to expand this right so long as it does not violate the existing limitations in the Constitution.

The views held my Mr. Roberts, while I again I state they were being made on behalf of “clients” or “employers” whose views he was entrusted to enforce through legal argument, be it sound or unsound, that other fundamental rights are not constitutional doesn’t seem to hold up once your read the constitution. This means one important thing, Mr. Robert’s as both Lawyer and Judge, left his arguments open for the U.S. Supreme Court to shoot down these issues. That’s not very sound law. I certainly wouldn’t want a Lawyer to handle my case like that!

I’ll admit, arguing for the “fundamental right to be free from discrimination” would also be a task, but one backed by the foundations of this country in which religious people came here because they were discriminated against back in their homeland, such as England, because of their religious beliefs which did not follow the mainstream of either Catholics or the Church of England. In short, they were Congregationalists, Puritans or Presbyterians, which was far worse in England than being a Catholic!

The whole foundation of America was based on the concept of discrimination by the King of England who levied taxes, order troops to be housed in private homes in peacetime, all without the advise and consent of those in America on a equal basis with those in England who formed the Parliamentary government!

Then there is the Civil Rights act. We can go on and on and on. Framers of the Constitution, the Constitution itself, Presidents throughout history and Congress have all had their hand in going against discrimination. To say there is no fundamental right to this concepts is foolhardy. It’s an issue you’re going to have a tough time both legally and politically enforcing. If this were Saddam’s Iraq, then you would have no problem with this concept. If this was Hitler’s Germany you’d have no problem with this issue. But in America, we were forged out of discriminatory practices by a foreign power and adversarial religious groups.

What remains unclear is how Justice Roberts would interpret such “rights” (fundamental or otherwise) once his Boss or Employer was the Constitution of the United States. That’s the real issue here. While Roberts gets nominated by Republican President Bush, Bush is not his Boss nor his Employer. Roberts must answer to the Constitution and the history books and there will be no re-writing.

On a repeated basis by Justices like Earl Warren and Sandra Day O’Connor, we’ve seen that their Supreme Court opinions don’t totally reflect the views and wishes of those who nominated them. The same applies to may other Justices throughout history.

What does bother me here is a fundamental issue with Mr. Roberts understanding of Constitutional law. How he feels he can loosely interpret or ignore Amendment IX to oppose the view that Judges or Presidents can loosely interpret fundamental rights not enumerated by the Constitution. That’s a conflict!

The Constitution says it doesn’t have to be listed to be there. It’s up to the states and the people to expand it and Judges are people too.

For Mr. Roberts to say that because it isn’t listed in the Constitution it doesn’t exist is clearly unconstitutional!

It is this matter that has me wondering about the merits of this person to be on the Court....


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