Wow "School House Rock" and "Davey and Goliath"
in the same day.

The problem is in line drawing, and who gets to do it. Whose test do we use for what constitutes pornography, yours or mine? IMHO, my standards are superior to yours. Look forward to seeing portions of the Bible redacted.

As for privacy--how can we secure the blessings of liberty without it? (See 1965 Supreme Court case Griswold v. someone/something or another)

Issues like racism, slavery, women's rights
were at least intellectually in play at the
time of the founding. Indeed constitutional
action (plus a war) was used to deal with these issues.

However, many of these modern vices that seem beyond the pale to so many conservatives now were also beyond the pale at the founding and therefore
should have no less of a hurdle in becoming.
codified than the remedies for slavery and
women's rights. Court's did not decide those.

Jeff, I think Orrin's point is on solid ground.

It would probably be too much to ask that people also consider the Constitution in light of other Founding documents, in particular the Declaration (which was effectively the preamble the Articles first, and then the Constitution), the Northwest Ordinance, the Judiciary Act of 1789, and -- last but certainly not least -- state constitutions (we are a federal republic, after all). But since we don't teach civics in the proper sense of the word these days, I'm not holding out hope. Indeed, one can obtain advanced graduate degrees in American Politics without spending much time with those documents (but I'll leave the APSA for another day).

Kevin,

Although I didn't mention federalism by name
when I say that the bar for making something
the law of the land must be high (as in the
slavery, women's suffrage issue) is an implicit
indictment of the "living constitution" theories
which are in practice an enemy of a federal
republic.

For many conservatives, the ideal of a tolerant
republic would allow for somewhat wide disparities
in norms and morals between the states. As we
had for example when states were free to address
many issues which have been pushed off-limits
by overeaching courts. Think of all of the
controversial issues that could be resolved
if we allowed people to truly vote with their
feet. My guess is that we would also see a
decrease in political apathy.

As it is now the will of the people is so often
thwarted by courts that people rightfully refrain
from political concerns.

There was no right of privacy for a hundred fifty years and we were fine.

Not all of us were fine when privacy was ignored.

I agree that the current right of privacy was invented rather than derived from the Constitution, but I've said before that there are profound rights that all of us believe in that have never been codified.

Harry:

Name one.

I'll step up for Harry: The right to choose one's profession. Of course this is frequently infringed (by licensing laws, e.g.).

Cool! I pick President when do I start?

OJ:

Picking one's profession is different than picking one's position.

You pick politician. Now you have to win an election to determine the position.

One of those privacy rights was in Griswold. Take a poll and find out how many people believe the government--at any level--has the right to decide which type, if any, birthcontrol a married couple may use. My guess is about 100%, maybe a few more, would agree with that position.

Prior to Griswold, some governments did take that power. SCOTUS in Griswold(1965) cited privacy rights as the reason to prevent government from making that kind of decision.

That's an example of an uncodified privacy right that everyone takes for granted. And we are all better off for it.

Well, except for statists, anyway.

Jeff:

Fine: choose medicine, choose flying, choose the military, choose acting, choose law, choose modeling... There are myriad where your choice does not give you any right to practice what you've chosen.

The sudden discovery of a "right" by the Court in the 1960's proves that there was no Right enshrined in the Constitution. Privacy rights are a creature of a majority of the Court and as that majority changes will evaporate.

OJ:

Once privacy rights become enshrined as a meme in the US population, Harry's point (how far do you think you would get today in a referendum to overturn Griswold) then the court majority starts making a lot less difference.

From the point of view that it is far easier for the government to have too much power than too little, privacy rights are an excellent thing.

Jeff:

Like segregation?

Good question. Self selected segregation, or public policy imposed?