This is a post, slightly revised, I made to a BlondeSense discussion of the Supreme Court's role in protecting citizens' rights:
I am not a legal scholar so I will, of necessity, keep my reasoning simple. You are correct that five Supreme Court justices, a simple majority, have no power to grant or deny rights. I agree -- unless they find a basis within the US Constitution for granting or denying those rights.
In our system of government, courts were given powers equal to those of the executive and legislative branches for a reason: to define and protect Constitutional rights that otherwise could easily be denied by the other branches.
So, interpreting the Constitution is not writing law or "rewriting law," as conservatives claim: it is the fulfillment of the Court's purpose in being. The fact that the Supreme Court has "discovered" rights that were not previously recognized by the legislative branch does not mean those rights were not inherent within the Constitution's framework.
Our country will survive only so long as all of us feel that we have a stake in its future. The founding fathers understood that principle. In the words of the Declaration of Independence, July 4, 1776, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The Bill of Rights, Amendment IX, states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Those self-evident truths apply to all of us -- male, female, black, white, liberal, conservative, straight or gay. Conservatives could, and some do, argue for a return to the day when the majority could simply ignore, even legislate against, the rights of any minority or class of people. They demand that all rights be determined through legislative action, and that some rights should be denied forever, even if that means amending the Constitution to deny rights they fear are being reinforced through the legislative process -- gay rights, for example.
If, as some argue, the Constitution has, from its inception, denied certain rights to certain people, then why are conservative groups exerting so much effort to amend the Constitution -- or to stack the federal bench with judges leaning toward the limitation of rights?
The Constitution, if it is to mean anything, must guarantee the same starting line for everyone. When laws are enacted and executive actions are taken that diminish the basic rights of the governed, the courts' role is to provide balance. No one's life should begin and end with a struggle for simple equality. No one's pursuit of happiness should be sacrificed to public opinion or political demagoguery.
The genius of our founding fathers was that they built flexibility into the Constitution to encompass rights in the future that were not fully recognized in the eighteenth century. The fact that blacks and women were barred from voting for many years, and that the Constitution was later amended to ensure recognition of their rights, does not mean that the foundations for eventual equality were not an integral part of the original Constitution and Bill of Rights.
Based upon the conservative view of "original intent," slaves could have remained slaves forever; women could still be waiting for the right to vote; our schools, military, businesses and marriages could still be segregated; gays could never hope for equal opportunity -- not because of a weakness of Constitutional principles but because of a failure to enact laws and policies to implement those principles.
To gain and to maintain our rights, must we depend always upon a fickle legislative branch to follow public opinion -- or, more likely, to reward the crowd that shouts the loudest or contributes the most campaign money? If that's the case, couldn't the rights we enjoy today disappear tomorrow?
Must we fight again, each election cycle, for rights already taken for granted? And do we want a different set of rights for different groups and classes of citizens, applied arbitrarily in various states and jurisdictions? Is the Constitution a document offering false hope to those who do not fit the majority's profile of "deserving" citizens?
I am simple-minded enough to believe that equal treatment under the law is our most precious and fundamental right. I know equality when I see it, and I want a Supreme Court that is not blinded by ideology. Equality and personal liberties must be protected by jurists who understand the concept of justice for all -- they must never become prisoner to the whims of either the US Congress or of fifty separate legislatures.
Both the executive and the legislative branches in Washington are controlled by powerful special interests. Today the religious right exerts undue influence on the Bush administration, and federal courts are being stacked with social and religious conservatives chosen for their narrow ideology, not for their appreciation of constitutionally-guaranteed rights. Republicans control both the agenda and the "advise and consent" role for the selection of federal judges.
In that sense, perhaps one party with one ideological view is attempting to sabotage the Constitution itself -- "to deny or disparage" the rights of anyone disagreeing with them on religious, social, scientific, medical and even economic grounds. That should give pause to everyone, whatever our political persuasion.
We need a Supreme Court that understands and upholds the Constitution. If my rights are not guaranteed today, will your rights be safe tomorrow?