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Friday, April 08, 2005

What does it mean to be "unconstitutional"?

I am not a legal scholar, and I haven't had time to really read up on this topic, but it seems that since Roe v. Wade the courts have found a considerable number of "rights" in the state and federal constitutions that I don't remember reading. For instance, the right to privacy (which the Roe v. Wade decision is predicated on), and now the right to contraceptives. From today's Chronicle of Higher Education (reg req'd)
EMERGENCY BIRTH CONTROL: Wisconsin's attorney general, Peggy A. Lautenschlager, has said legislation that would prevent the University of Wisconsin System from advertising, prescribing, or dispensing emergency contraception is unconstitutional. Ms. Lautenschlager, a Democrat, said preventing the college from providing the morning-after pill would violate female students' right to privacy and discriminate against them by denying them access to medication that only women may need. Democratic legislative leaders had requested the attorney general's opinion on the bill, which was expected to be introduced late this week. Lawmakers are not bound by the attorney general's advisory opinion.

So, under certain interpretations of the constitutions, laws cannot be written for a single person (read Terri Schiavo) or a group of people because the laws violate the equal protection clause. In the case of contraceptives, the right to privacy is violated if the university (read, public money) is not allowed to advertise and hand them out? Furthermore, the law - which by definition is not an equal protection law - is required to avoid violating equal protection?

Such Orwellian logic is baffling. I am not against contraceptives, although I am not personally in favor of abortion. The morning-after pill, as far as I can tell, is only effective post-conception, which sounds very close to abortion to me, but that is my personal opinion. Nevertheless, if the legislature (read, the majority of the state's voting population) does not want to spend public dollars on morning-after pills and these pills are available in the private market (say at a Walgreens) then where is the constitutional issue?

I imagine the promoters of abortion, usually shrouded in "pro choice" language, know that they are on dangerous ground with the morning-after pill and therefore invoke the constitutional issue as quickly as they can, find a similar-leaning judge, and shut down the legislature and the representative democracy we supposedly "charish".

I have a feeling that the privacy concerns are not really in the constitution, were not in any of the writings of the founders, and therefore has very little legal support and this is the reason the left fights so hard to deny any judge (federal, state, appellate, or supreme) that isn't 100% on board with abortion. Gun-rights activists do not fight with every ounce of their energy, to the same extent as abortion activists, against every judge in the country who has a hint of being against 100% free guns. Perhaps this is because the gun activists know that the second amendment is pretty solid ground, whereas the privacy claim is ephemeral - the abortionists got lucky in Roe v. Wade and now they have to protect their lucky winnings with such ferocity.

Gun rights activists don't fight tooth and nail against judges, but they are one of the strongest lobbies out there are certainly put up a heck of a fight against any laws attempting to restrict gun rights. I think the nature of the attempts to roll back gun rights takes place mainly in the legislature while attempts to roll back abortion rights take place in the courts (as abortion rights proponents take new laws to the courts). If the anti-gun laws got passed in the first place, you'd see the gun lobby take their fight against judges.
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