Thursday, September 08, 2005 Rapid Rise of a Judge

*A.K.A. questions the senate should ask Justice Roberts*

You got to feel sorry for the guy, granting of course that he is possibly going to rise to the highest post in the US Judiciary, but nevertheless, to be in a US Supreme Court nominee in an era of massive divisiveness and politicisation of culture and the judiciary. I'm pretty sure he expected it, but for a post on the US Supreme Court bench and not the Chief Justice, especially coming on the heels of CJ Renquist.

The editorial is pretty well written and sums up much of what's at stake and in particular, the questions Roberts needs to answer to a certain extent. But I think a point of clarification is in order. When Justice Roberts wrote his memo on Roe v Wade, it was done so as part of his job as White House Counsel. So it's entirely conceivable he does not share such views but simply that his job requires him to act in the best interest of his client. In this situation, they wanted a memo arguing against Roe v. Wade and that's presumably what they got.

The editorial basically listed 3 areas in which they believed that the senate should grill him on, but I really only want to focus on one because this right does not officially exist in our jurisdiction and is a remarkably important one that few realise the implication of, not least me. It was only after watching an episode of the West Wing that I figured out what the hell the Right of Privacy meant.

I think very simply put, this right reverses the onus and gives freedom to the citizens to do as they will and the state would not intervene and legislate against unless they could demonstrate a compelling interest. So the idea is that the state can't suddenly ban people from using dairy creamers in their coffee unless they can demonstrate there's some good reason for them to do so. So chewing gums would probably still be legal unless there were really so destructive that they posed a threat to our tax revenue or national security.

What Singapore does have is a limited right of privacy, the right not to bothered for example. We were the ones that created the tort of harassment (and saved parliament from having to draft a bill), so you can actually sue the guy/gal who is persistantly persuing you. But it is not a fundamental right. In a manner of speaking you really have as much rights as the Constitution gives you, which really may not be enough because as the editorial suggests, there are very basic fundamental issues that are not covered except under this particular right. So theoretically, without it, any US state would be free to ban abortions of any sort (Roe v Wade) and to make the selling of contraceptives illegal (Griswold v Connecticut). As an aside, I've read that if Roe v Wade were overturned, only 32 abortion clinics out of 1080 would be shut down, as the places that would reinstate anti-abortion laws already have very few clinics. And as usual, this loss would fall disproportionately hard on your young teenage mothers who don't have the resources to travel out of state to get one. And considering the insanity of the abstinence only policies right now, how could the situation not get worse?

And this boils down to the huge debate with regards to the US Constituion and the two major judicial camps. One believes that the Consitution is a 'living document' and that it encapsulates ideas that go beyond what is expressly stated in the written text. The other camp are the 'literalist' who believe that the founding fathers (thought considering the influence women had on the text, it might not be entirely accurate) stated that in the Bill of Rights and the judiciary is oversteping its bounds and being activist and legislative power should remain with Congress. Of course, apparently the senator from the newly created state of Georgia opposed a written bill of rights for this very reason. He feared essentially the literalist camp who would believe that all that could be said and that the total and entire intention could be set down on paper. On the othe hand, judicial activism is a problem, especially as it is the conservatives who are being activist now.

Anyway, back to our local context, I'm not entirely sure the government COULD NOT ban certain people from wearing bikinis. After all, wearing them isn't a right of expression or speech which would make it exempt from the Constitution. Of course, Parliament could always amend it (the Constitution) given its overwhelming majority but still the idea stands. So, it is not simply about having the right to go naked in your home, it's much much broader than that.

Thus, while I'm sure some of my friends would cheer given the entirely inappropriate dress code some of the people have been using around school, but I think that some visual trauma is a small price to pay for a bigger freedom no?



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