I followed the link and looked at the references for this example, just because it happened to be the first on the list.
The first says that a state board of optometry did not follow it’s own procedures. It seems that the issue was actually about the extent of the powers of federal courts vs. state courts.
The second said that the state of Nebraska couldn’t outlaw the teaching of German as a second language in grade schools.
It is clear that the Constitution doesn’t specifically enumerate that right. I imagine if further cases test it that the right to choose your own (legal) vocation would be upheld, but like many unenumerated rights it has to be challenged to confirm.
I’d argue a number of those rights are not universal even for citizens. Some of this post will relate to criminals but I’m avoiding things like probation disallowing the right to travel.
free from compulsory sterilization - only in 2014 was banned in California. Ostensibly is not happening anymore. I’ll have 0 surprise if it’s still happening. California Bans Sterilization of Female Inmates Without Consent. That’s the most recent systematic sterilization I am aware of.
right to vote: I present felons after serving their time in many states
attend/report on criminal trials: Secret FISA courts
marry or not marry (regarding same-sex or interracial): currently explicitly called out by SCOTUS as requiring review to make sure it’s okay (haha /s)
consensual sexual practices: again, current-day SCOTUS (haha /s)
Also, American citizens in Guantanamo without habeas corpus.
I agree that some of these are not universal, but neither are some rights that are enumerated. Take the right to free speech for example. There are some statements you can make that will bring the government down upon you.
Of the ones you list, the one that still has me scratching my head in terms of constitutionality is detention of prisoners without charge or trial, whether at Guantanamo or other black sites.
Even things enumerated as a right are left to the whims of an unelected judiciary. Pick any enumerated right, and you’ll likely find lots of court cases on how far it extends.
The founding fathers knew for certain they could not possibly enumerate every right. That’s why they specifically included the language in the ninth amendment.
Yeah but privacy is not enumerated so to take the right to privacy which isn’t given and then decide how far that right extends is a stretch. The Legislature should make an amendment and give the right to privacy, then the judiciary can do their given job and decide whether a given claim applies to that right.
The best thing you can say for privacy is a derived intent to give people privacy based on some of the language in other laws. That’s really not a clear right.
Are you familiar with the concept of separation of church and state?
Yes, very clear. That’s why they overturned a law that has been in existence for more than 100 years. Obviously this group of judges understands the Constitution better than those who came before them.
I imagine the founding fathers weren’t imagining a day when the government would want to regulate what sexual practices you and your wife engaged in. They specifically left an out clause in terms of non-enumerated rights that were so obvious they shouldn’t have to be stated.
While I would actually like to see an amendment codifying privacy, the GOP would never agree to that. Government intrusion to support a religious agenda is part and parcel of the platform now.
IMO, any case that is divides the Court is unclear. Do you ever read the opinions/dissents? They can be a slog, but I also find them interesting. Kind of like reading GoActuary, but turned up to 11.
And, freedom from the “establishment of religion” is right there next to it. The court reduced state/local governments power to decide where to draw the line. You can say the court was “right” to overrule local authorities, but don’t say they increased the power of state and local governments with that decision.
Again pretty clearly a right enumerated in the Constitution.
Same answer. There are no completely unrestricted rights. Past courts thought that local gov’ts could go this far in restricting rights, this court disagrees. Again, you may think this majority made the “right” decision when they overruled local gov’t, but don’t claim they expanded the powers of local gov’ by overruling them.
Same answer again. You may think the current majority ruled correctly. I’m pretty sure prior majorities would have ruled the other way. But, that’s not my point.
They restricted the power of Maine and school districts in Maine (and by precedent, the rest of the country) to set their own policies regarding tuition assistance.
They are not “consistently expanding the powers of legislatures”.