I'm breaking up your last post to me, Nate, so it doesn't get too out of hand.
You can't use me wasting time on the internet conducting thought exercises as a stand in for justices with whom you disagree.
Believe it or not, I wasn't trying to belittle or diminish your position. I actually thought you were just being upfront about something I've heard a lot of liberal scholars admit to.
Just hear me out for a second.
I graduated UVa law, and was an assistant editor of the Law Review. Because of that position, I ended up being at a lot of different lunches and receptions involving visiting jurists, professors, etc.. We got a pretty prestigious crop, and there were a lot of pretty candid conversations. That's in addition to what my ConLaw Prof taught. Additionally, I attended Federalist Society national conventions for almost two decades, and despite the conservative leanings of the organization, it was known for inviting and attracting a lot of non-conservative attendees as well because of the open intellectual environment.
My point in saying all this is that I've had a lot of occasion to hear influential legal scholars talk openly about their judicial philosophy. So, with that said....
I have heard a
majority of those scholars on the left who have addressed the issue admit to exactly what you stated in your last post 9minus the "utopia" comment) -- that if they believe there is a moral/societal need for the recognition of a new Constitutional right, that it is perfectly proper for the Court to create that right if the elected branches refuse to do so. And that is true even if there is no historical or legal support for the proposition that the right was ever considered to be "fundamental", or even if the weight of historical/legal evidence is that it was affirmatively
not considered a fundamental right.
The attitude expressed -- in basically these exact words -- was that if the Court doesn't enact changes the Court deem necessary or important to society, then it may not happen otherwise. Therefore it is
proper for the Court to do so. Not because the conclusion is
legally compelled, but simply
because it is the right thing to so.
One of the most common contexts in which that POV was expressed was in discussions regarding
Roe v. Wade and the determination that abortion was a fundamental right. It's the easiest example because there are shitloads of liberal, pro-abortion rights legal scholars who will admit the decision is legally indefensible, but that they support it because they like the result, and believe that abortion
should be a constitutional right.
So anyway, when you said:
I am coming from a place of using the words of the Constitution as written and how I believe society should have progressed from then....
I'm basically read a perfect echo of what Justice Kennedy said, which is why I made that link:
In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.
“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0
If you accept Justice Kennedy's formulation, then the Court has given itself the moral/legal basis to recognize any "right" they deem morally desireable, because words like "liberty" and "privacy" are completely open-ended
unless you consider those terms bound in at least some sense by their accepted meanings at the time of ratification.
But those justices don't deem themselves to be bound by the historical record at all, so they've got that
carte blanche to add whatever new fundamental rights they deem desireable, as long as they can couch them in terms of "liberty" or "privacy", which are about as vague as get if you separate them from historical context.