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Originally Posted by Elphaba
Roachboy, I agree that informal interpretation of the constitution creates a legal precedent that guides further views of a specific law. I also agree that the current cultural "wars" are making use of the "judicial activism" term in the attempt to reverse long standing legal precedent. I believe any justice of SCOTUS will find himself a minority if he attempts to reverse law based upon precedent.
I have been trying to understand in historical terms vs. the current cultural climate in how SCOTUS has come to interpret the Constitution in ways that are not clearly spelled out by the written document.
For example, I do not understand how the precedent of interstate commerce was legally applied to a farmer that was raising crops for family consumption. You cannot get more "intrastate" than that. But for good or ill, it has become a long standing precedent and will not be reversed.
MoJo, thank you for your post. I have read it several times looking for an answer to my question of privacy rights. What I find there are proscriptions forbidding the states from entering agreements with outside agencies or forming their own monitary system. The relationship of the state with the individual isn't addressed here that I can determine.
Folks, I am just not getting "it" and fear that I am going to be viewed as stubborn if I continue asking the same question. Thanks to all that have attempted to clear up my confusion, but I believe I am a distraction to the discussion at this point.
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I may be able to clarify some of the sticking points you're encountering in one post (maybe my last one helps, as well):
the right to privacy was "read into" the constitution to understand how the constitution could include a right to be free from government intrusion in certain affairs (personal effects, press as thought/expression, right to contract between individuals, for example)
the words used were the recognition of a "penumbra" of rights. a hazy sort of aura that must exist, must according to the reasoning, if those rights were to be held valid. that is, while the constitution doesn't explicitly argue for a right to privacy, it must be assumed if one is to have a right to be free in his own home from government intrusion, for instance.
interstate v. intrastate
yes, in agrarian society farmers were growing for their own
but as we moved into industrial society, that legal logic runs into trouble
if a farmer in one state must deal with state laws regulating tobacco, for example, then he will have to deal with his own state laws, and all of the states his commodity will pass through to get to New York smokers.
so while it looks confusing when a peanut farmer grows peanuts to eat, how does that become interstate, but not when we recognize that other peanut farmers were shipping their stuffs to other states.
this recognition may come in handy: SCOTUS decisions, although they appear to be handling individual disputes, are not meant to be observed or understood as such. disputes are handled in the various state courts. supreme decisions are reserved for items of social import, not policy. which is one of the reasons they only take the cases they want to, without political retribution (as article 3 judges) or explanation of their decisions to take or not take an individual case. they wait until sufficient discord between the states exists to warrant a social clarification.