Monday, January 16, 2006

Thoughts on Alito and the US constitution

As I watched the confirmation hearings for the Supreme Court nominee Samuel Alito on C-Span, it struck me that this was a man who would confirm the philosophy that law operates by looking through the rear-view mirror -- and everyone knows it's hard to move forward when you're only looking in a rear-view mirror. He is, by most accounts, a strict constructionist --In legal circles, this term refers to a philosophy of judicial restraint that calls on judges to interpret laws according to their original meanings. Strict constructionists don't want to meddle with theories of evolving community morals, divine natural law, or seek out "penumbrae." Theirs is a code of strict adherence to the words on the page. Never mind at looking at the spirit of the law. Justice or doing what's right be damned. What's law is law, and what isn't law -- well, get back to us after you've had it enacted by your local legislature.

The problem with strict constructionism is that it leads to decisions like the Dredd Scott case . And for someone like me, who has been promoting "evolving notions of personhood" (since emerging technologies will challenge our traditional notions of personhood) and trying to forge a path between pro-choice and pro-life activists, this is not good.

The question, as I see it, is do we want to see the U.S. Constitution as an empowering document or as a limiting document? So with confirmation of Alito are we really preparing to face the difficulties emerging technologies present (ranging from privacy of our own thoughts to the artificial womb to new life forms) or are we beating a hasty retreat to feel safe and snug in our straightjackets?

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