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Constitutional Law for the 21st Century

by TChris

In today’s NY Times Magazine, Jeffrey Rosen argues that John Roberts (who might serve for 40 years if confirmed to the Supreme Court) should be asked about “a Brave New World of constitutional disputes” that could arise during the coming decades. These include:

  • Brain fingerprinting: Using neuro-imaging techniques to detect electro-chemical signals could reveal whether an interrogated subject is telling the truth. Would the Court view an involuntary brain scan as a nonintrusive gathering of information rather than a search governed by the Fourth Amendment? Would the Court view brain scans as forcing an involuntary disclosure of thoughts prohibited by the Fifth Amendment’s requirement that individuals not be made to testify against their will?
  • Genetic screening: Would the Court decide that the right to procreation and to privacy in intimate decision-making outweighs a state’s interest in prohibiting the creation of “designer babies,” genetically engineered to weed out (for instance) homosexuality, or to assure a child of a preferred gender?
  • DNA analysis: If affirmative action continues to pass constitutional muster under some circumstances, will a potential beneficiary of a race-based preference be entitled to rely on a DNA analysis showing the presence of genes that came from Africa?

Other topics: “Old Age and Drug Legalization” and “Property, Free Expression and the Right to Tinker.” Judge Roberts is unlikely to take a meaningful position on any of these issues (arguing that he shouldn’t prejudge any issue likely to come before the Court), but the article is a fun read for those who like to ponder the evolution of constitutional jurisprudence in the 21st century.

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    Re: Constitutional Law for the 21st Century (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:51 PM EST
    Another aspect to consider about Genetic Screening- How long until Employers require a genetic analysis before deciding if they will hire someone, to determine if they will actually need their health insurance. After all, they can't be expected to insure someone who might actually use health benefits, as that might cut into the C-level salaries.

    Re: Constitutional Law for the 21st Century (none / 0) (#2)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:02:51 PM EST
    Adept - They are already doing that. It is called forced "retirement." And it isn't just the employee, but the spouse as well. Et al - Some good questions, but didn't the Left declare that a nominee shouldn't be asked about cases they might be involved in? Wasn't it Ginsberg who established that policy? So if we change the policy, what do we do, get rid of everyone after her and start over? The road to hell is always paved with good intentions.

    Re: Constitutional Law for the 21st Century (none / 0) (#3)
    by wishful on Sat Dec 17, 2005 at 01:02:51 PM EST
    This morning I heard on a talking head show that the US Ambassador to Iraq thinks that everyone knows that Constitutions are living documents and can be changed to reflect existing conditions. He thinks that the Iraqis shouldn't worry so much about getting it right, but instead should put something forward ASAP, and then refine it later. That is quite different than my understanding of constitutional originalism, of which I believe Roberts is an adherant.

    Re: Constitutional Law for the 21st Century (none / 0) (#4)
    by Edger on Sat Dec 17, 2005 at 01:02:51 PM EST
    the US Ambassador to Iraq thinks that everyone knows that Constitutions are living documents and can be changed to reflect existing conditions
    Doesn't the president appoint ambassadors? That seems to be the way Bush views the US Constitution...

    Re: Constitutional Law for the 21st Century (none / 0) (#5)
    by wishful on Sat Dec 17, 2005 at 01:02:51 PM EST
    edger, I'm thinking that Bush acts as if our Constitution means what he says it means, regardless of what it says and regardless of legal judicial precedent. Maybe that's what the US Ambassador was referring to. But if so, didn't we depose just such an Iraqi ruler not too long ago?

    Re: Constitutional Law for the 21st Century (none / 0) (#6)
    by soccerdad on Sat Dec 17, 2005 at 01:02:51 PM EST
    Et al - Some good questions, but didn't the Left declare that a nominee shouldn't be asked about cases they might be involved in? Wasn't it Ginsberg who established that policy? So if we change the policy, what do we do, get rid of everyone after her and start over?
    Its still a good isea not to discus cases already in the legal system and may work their way up to the supremes. However, discussing hypothetical cases that are not in the legal pipeline, or non-existent in todays world, should be ok.

    Re: Constitutional Law for the 21st Century (none / 0) (#7)
    by squeaky on Sat Dec 17, 2005 at 01:02:52 PM EST
    PPJ-Once again your rhetoric fails under scrutiny. Read the report:
    The report examines the extent to which then-nominee Ginsburg provided substantive answers to Senators' questions exploring her judicial philosophy. While some pundits have claimed that Senators are not authorized to inquire about Judge Roberts's judicial philosophy, the Ginsburg hearings suggest otherwise. Bennard establishes, for example, that Justice Ginsburg answered questions about current and controversial legal issues with candor, including questions about her personal views of contentious social issues, her judicial methodology and her approach to constitutional and statutory interpretation.
    Among other issues, she freely answers questions about due process, abortion, free speech, and Stare Decisis. The Chimp King and Roberts define pending cases as anything that may come up in, say, the next Millennium. Also the Bushies must have something to hide because THEY STILL HAVE NOT HANDED OVER ANY DOCUMENTS REQUESTED BY CONGRESS. ZERO, ZILCH, NADA. His refusal to cooperate goes against all precedents set by 'advise and consent'. One thing we know about Roberts position is that he supports an untouchable executive branch which befits an Emperor or King, not a President of the US. No wonder Bush chose him, evidentely with a lot of help from Ed Meese, remember him.

    Re: Constitutional Law for the 21st Century (none / 0) (#8)
    by DawesFred60 on Sat Dec 17, 2005 at 01:02:52 PM EST
    Laws will just be made-up as you go for this new century so get ready for a lot of fun and political games in the coming dark future of laws by feelings and political need.

    Re: Constitutional Law for the 21st Century (none / 0) (#9)
    by pigwiggle on Sat Dec 17, 2005 at 01:02:53 PM EST
    “will a potential beneficiary of a race-based preference be entitled to rely on a DNA analysis showing the presence of genes that came from Africa?”
    Don’t we all have African DNA, and isn’t AA really about breaking pervasive institutionalized racism? It seems to me that we are talking skin color and not ancestry, or are we back to the ‘one drop’ rule, the inverse of Plessy; an entitlement in place of a deficit. We should be asking Judge Roberts his thoughts on a preference system based on skin melanin content.