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Originally Posted by Elphaba
It appears to me that the accusation rests on whether an individual agrees with the interpretation or not. The reinterpretation of the right to privacy has been the primary source of charges of judicial activism. Before the privacy cases, it was perfectly constitutional for a state to forbid married couples from using contraception; for a state to forbid blacks and whites to marry; to abolish abortion. Because of judicial changes in the interpretation of the Constitution, the nation's outlook on these issues changed. That does not mean that everyone agreed with those changes.
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Activism isn't necessarily a bad thing in all it's form. I don't think that there are many folks that would argue that the results of Brown v. BOE weren't worth the limb that the court went out on to make it. That's how activist courts tend to look at decisions - they ask what the real world ramifications are. Constructionist courts basically say damn the ramifications, this is what the document says. There are good points and bad points of each stance, and I don't think that you can classify either as positive or negative. They aren't quantifiable in that way.
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Originally Posted by Elphaba
I am firmly against the legislation of morality in any form, so I have no argument with any of these changes per se. I do have a problem with the apparent federal interference in state affairs. I hope that there is someone here that is versed on the argument or "reinterpretation" SCOTUS made to supercede state law.
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Unfortunately, the Constitution as written legislated morality - slaves were 3/5ths human, women and non-landowners (the poor) couldn't vote, the people couldn't be trusted to directly elect Senators or the Presidents. Remember Prohibition? That was all about morality.
As far as SCOTUS and state law, the way I understand it, SCOTUS can only decide on cases where the challenge is under some portion of the US Constitution. State constitutions are decided by state courts. Does that answer your question?