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>From: Nancy Gish <[log in to unmask]>
>Reply-To: "T. S. Eliot Discussion forum." <[log in to unmask]>
>To: [log in to unmask]
>Subject: Re: Feminism and Individual Rights
>Date: Mon, 2 Dec 2002 16:43:04 -0500
>
><< attach1 >>

As you can imagine, the Court greatly restricts those facts which dictate a
result.  When James Madison made his comment, he was discussing the Fourth
Amendment (the search and seizure-probable cause amendment).  That Amendment
was the first to be subject to "balancing," even though his analysis means
that it dictates a factual analysis, not a balancing analysis.  The
question, as the Court sees it, is whether the protected interest is greater
or lesser than the government's interest.  As you can see, that is NOT the
question if the fact dictates the result, because then NO government
interest could possibly outweigh the fact, which is why there is no
balancing--and,again, why balancing is the favored analysis.  Privacy is one
of those balanced areas.  Is it a fact of the individual?  It has never been
found to be so.  Instead, an approach has been taken which gives the Court
more leeway.  The facts have been examined, and the Government's interest in
undermining the individual with respect to those facts, and the balance has
come out in favor of privacy.  This analysis takes place under several parts
of the Constitution--the Fourth Amendment and also the Fourteenth Amendment
(which has due process and equal protection aspects).  However, note that
neither legal equality, nor racial equality, no abortion are regarded as
FACTS of the individual.  They are regarded as INTERESTS with respect to
which, after a balancing analysis, the Court has decided to vindicate the
individual.

Why does the Court take this approach?  It is quite simple.  In the Court's
view, if a fact is a fact of the individual, to be vindicated with  respect
to the individual in every case, then let the country put that in the
Constitution just as the Bill of Rights was put in the Constitution, just as
the 13th Amendment was put in the Constitution, just as a woman's right to
vote was put in the Constitution--through the democratic process.  If it
does not go in that way, then the Court is VERY dubious as to finding those
facts in the Constitution as it is already written.  If the people are
hesitant, then so is the Court.  And of course, the people are very
hesitant.  Look at the ERA: the right to vote is in the Constitution, but
the ERA is not.  Eleanor Roosevelt herself opposed the ERA.  So we are
talking about a process of feeling our way VERY cautiously to 'absolutist'
rights such as an establishment of religion.

As for Bush, he is simply taking advantage of a very serious initial
mistake: reading the Fourth Amendment as dictating a balancing of interests.
  James Madison says, it dictates a factual analysis.  But frankly, when the
Fourth Amendment was put in the Constitution, slavery itself was
Constitutional.  How on earth were you going to reconcile these two things
unless you subjected a LOT of Constitutional provisions to balancing, and
balanced them in a way which preserved slavery?  It "had" to be done.  So a
VERY pernicious precedent was established.  And now Fourth Amendment
balancing (and you can always find that balance falls on the side of
eliminating warrants, or outlawing abortion, or mandating gender or racial
legal inequality) is so much a part of the law that there isn't even a
strong movement for changing that.  We are, in short, VERY far gone in the
police state.  But don't blame Bush--he is the result of it, not the cause.

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