Who Gets To Decide What's "Fair"?

One of the more articulate wingnuts out there is again dredging up that tired old meme about "Supreme Court justices [throwing] out what the Constitution has to say when formulating rulings and [substituting] their individual sense of 'fairness'", suggesting (yawn) that in doing so, they'd be "substituting their individual policy preferences for those of our duly elected leaders in the state and federal legislatures?"

What the self-proclaimed "blog princess" continues to ignore (it's got to be intentional, because otherwise she's a pretty sharp cookie) is that some of the greatest advances in freedom in this country have come from judicial decisions that acknowledged that there are fundamental values woven into the Constitution that are not necessarily spelled out in it (and that in the past have even been specifically denied in it) that rise above the four corners of the document and raise us up above most other countries in the world as better people and better citizens.

It's popular among certain commentators to suggest that so-called "activist judges" took constitutional power away from "the people" when they decided Brown v. the Board of Education, Griswold v. Connecticut, Roe v. Wade (admittedly a difficult case), Lawrence v. Texas. A number of other cases could also be cited (and when I get the time, maybe I will). Why does it seem, however, that the examples given by these same commentators usually have to do with protecting some political minority from the efforts of a political or religious majority to suppress the minority's "life, liberty and pursuit of happiness".

These are complex issues, for sure, but oversimplifying them does nobody any good. As a constitutional scholar one told me "for every problem there is a simple and erroneous solution". People on the left and the right are guilty of oversimplification. Some of us expect more, however, and we are entitled to more.

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