What do those who oppose stem cell research and "activist" judges have in common? Go below the fold to find out.
Apparently, they all agree that a historical document can establish principles that endure through history and can be interpreted in modern times to apply to unforeseen circumstances.
Imagine if you asked a judicial nominee about potential violations of a person's right to privacy and she said this:
I think it's true that the Constitution does not provide any specific prohibitions on this, but that's not surprising given that there were not computerized searchable databases available. We weren't aggregating everyone's personal information in readily searchable forms in those days. But I suspect that if people had been in those days there would have been very clear prohibitions against some of what we are discussing now. In other words, the tradition that has grown out of the Constitutional reflections on these questions has taken a very clear direction with direct applicability to the kinds of dilemmas we face today.
What would the conservatives say? I am guessing that they would scream in opposition to this "activist" judge. They would demand a strict constructionist.
Now consider this.
On Monday, August 1, 2005, guests on the Diane Rehm show discussed the latest developments in the ethical, scientific and political debate over stem cell research. You can listen to it here: http://www.wamu.org/programs/dr/05/08/01.php. At 42:27, you'll hear Father Tad Pacholczyk, neuroscientist and director of education at the National Catholic Bioethics Center, respond to a question about whether the Bible expressly prohibits stem cell research:
I think it's true that the Old Testament does not provide any specific prohibitions on this, but that's not surprising given that there were not embryos available. We weren't making human beings in petri dishes and test tubes in those days. But I suspect that if people had been in those days there would have been very clear prohibitions against some of what we are discussing now. In other words, the tradition that has grown out of those early old testament and new testament reflections on these questions has taken a very clear direction with direct applicability to the kinds of dilemmas we face today.
I don't know what Father Pacholczyk's view is on "activist" judges, and I don't mean to in any way impugn his beliefs. This is a candid statement about the basis for his concerns about stem cell research.
But the statement is also revealing for understanding conservatives. I doubt anyone would argue with me that conservatives who oppose stem cell research often rail against "activist" judges. This quote demonstrates the logical inconsistency of that position. They can accept an important religious position based upon "traditions" that have grown out of the Bible and "reflections" upon it. Yet somehow a similar exercise with the Constitution is bankrupt. This is not to suggest that the Constitution is on the same level of importance to Christians as the Bible. But really, shouldn't the earthly Constitution be even more open to interpretation by man than the Bible? Is there a reason that the Bible should be more flexibly interpreted than the Constitution?
What I take out of this is that conservatives don't like the rulings of judges who see a right to privacy. They don't like the sexual or reproductive implications of that.
And the "activist" judge argument lets them go after those judges while avoiding talking about the real issues. It puts their concern in almost a procedural context and one that is harder to object to and rebut.
Why would they do that? Because the American people aren't with them on the substance. They will not garner public support by stating their opposition to a judge because the judge finds a right to privacy inherent in the Constitution.
At least that's what I think. How about you?