So Much Depends...

[EDITOR'S NOTE: Click here for a quick intro of Brittan]

I'm currently on a legal scholar's exchange program in Argentina. Recently we Yalies were taken to observe several judicial hearings.

I was struck by the court's refusal to accept an oath of office, effectively refusing to seat an elected representative who admits torturing and is accused of further crimes against humanity. This is against an international agreement, signed by Argentina (thus having the same weight as a constitutional provision) which should disqualify individuals like Sr. Luis Patti from holding public office. The final holdings should be interesting.

Yesterday Patti had a support rally that was televised live. He said "Human rights are an issue of the Left." One of my roommates jumped up like it was a goal in a futbol match, and the other sucked on her licorice drops with wide pupilled eyes. During the legislative hearing, opposing politicians were also yelling, but in sync with resounding cheers from crowds in the balconies. (If only the US had a heckling gallery in Congress!) We were supposed to be there, but the authorities had to limit the number of onlookers.

I hadn't expected the Dirty War to be such an open issue in judicial forums, but it's really everywhere. Trying to fix the problems resulting from this period seems to really infuse the jurists we've met so far with a palpable sense of purpose. It's really inspiring and makes meetings that I had expected to be somewhat dry and perfunctory into fascinating conversations. The signs of the scabs are all over the streets too -- in the graffiti and the art marring the walls and the cobblestones.

It's difficult for me to imagine that something like that occurred in this place. In other countries, it's been quite easy. Here, the pervasive beauty and lazy sunshine, along with the lovely people, can lure my mind into such a romantic reverie. But today, while standing on a balcony to watch the traffic, I did happen to notice the complete lack of green Ford Falcons (car predominantly used in the disappearances) and remembered that good genocide research ultimately comes down to the details.

William Carlos Williams was sitting by a dying patient and he happened to look outside the window. You probably have heard of the resulting poem, The Red Wheelbarrow":

"so much depends
upon

a red wheel
barrow

glazed with rain
water

beside the white
chickens."

This poem came to my mind at the moment I thought about the green Falcons. It was a strange juxtaposition...and I pondered how confronting morality on either a large or small scale can bring clarity -- figuratively or literally bringing out the colors of minutia.

The Right To Privacy And The Ninth Amendment

so the wind is howling, and i can't fall asleep because of it. so i'm reading more conlaw and thinking about stuff. here's a not-so-original thought that i had as i reread griswold and roe and thought about the so-called "right to privacy":

the constitution is not a rights-creating document, but rather a government-creating one. the declaration of independence, as well as common sense, teaches us that the rights of the people exist independent of and prior to the formation of united states. the people established the united states to create a more perfect union of sovereign states as well as to promote the general welfare, to insure domestic tranquility, and so on. but the framers of the constitution and the bill of rights took special pains not to enumerate the rights of the people, but rather to enumerate the powers of government.

contrast article I, section 8...

"the congress shall have power...to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states."

...with section 1 of the fourteenth amendment...

"no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

...with the ninth amendment.

"the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


it seems clear to me at least that the constitution is supposed to define the limits within which government (first federal, and now state too) must operate concerning the rights of the people, whether or not those rights are specifically enumerated in the constitution. if this is indeed the case, then the right to privacy already exists "in the constitution" despite the fact that the word isn't there. (see the ninth amendment.)

when government passes a law, the burden of proof is (or at least should be) on the state to show that the constitution grants it the power to legislate and that its legislation is consistent with any express or implied constitutional limitations on that power. so government does have the power to abridge the right of privacy, but only so long as it meets those two criteria. it should be the first job of legislator, an executive, or a judge to determine whether or not a particular law can pass the test.

with respect to the federal government, the powers are clearly limited to article 1, section 8 and the empowering clauses of post-civil war amendments (13, 14, 15, 19, etc). the power of state government is closer to plenary, subject to limitations in individual state constitutions. but article I, section 10, most of the bill of rights, section 1 of the fourteenth amendment, and numerous other provisions in the constitution place specific and general limitations on government power.

but this doesn't change the fact that unenumerated civil rights and liberties that exist independent of the state (such as the "right to privacy") are necessarily incorporated in the constitution via the ninth amendment. the real question to be answered is whether the people have granted their government the power to abridge those rights and liberties, and in what way.

holy crap

sean, you're a madman. I think your brain must operate at about a million miles a minute. the flow volume of words and thoughts in and out of your head is probably breaking some records. for me, it takes five minutes just to decide what to eat for lunch. speaking of which...

I Defy You All

To write "Something Interesting" about the Bill of Rights or 14th Amendment.