The state of Connecticut circa 1958 through its popularly chosen representatives enacted a law banning the use of contraceptives.[21] The executive director and medical director of the Planned Parenthood League of Connecticut challenged the law after their arrest under the statute.[22] Following a tortured construction of the 14^th Amendment and the Bill of Rights, an implicit right to contraception emanated from the penumbras of the Bill of Rights to invalidate the law.[23] State legislative acts must yield to the 14^th Amendment, the Court held, where the two contradict.[24] Griswold was notable in that the Court created the constitutional conflict — the clash between marital privacy rights and the Connecticut statute was judicially manufactured in that no such marital right to contraception appears in the Constitution, and no married couple invoking said rights was a party to the case.[25] Griswold, in fact, inaugurated the beginning of the Left's strategy and preference for judicial policymaking.[26]

In 1992 the people of Colorado enacted Constitutional Amendment 2 by statewide referendum, repealing all Colorado local ordinances to the extent they prohibited discrimination based on homosexual, lesbian or bisexual orientation.[27] In Romer v. Evans, the Supreme Court struck down the statute on Equal Protection Clause grounds, holding that the Amendment failed to meet even the rational basis test.[28]

Several things are illuminative about the Romer Court's reasoning. First, the case was a facial challenge to the entire Amendment.[29] Second, unlike the petitioners in Griswold, the parties lacked actual standing — none had sustained an injury in fact alleged to have been caused by the amendment.[30] Third, the Court appraised the conduct of the voters of Colorado and determined it to be pernicious.[31] As the Court noted:

'If the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'[32]

These three facts in particular weigh strongly in favor of the Court acting as a super-legislature. Most notably, the combination of allowing plaintiffs with arguable standing to facially challenge the entire Amendment evidences that not only the bringing of the suit, but the Court's invalidation of the Amendment was an act of political preference, not legal judgment.

Also illustrative is the sweep of the Court's unilateral assessment of the motives of the Colorado electorate. The Court's opinion concludes its inquiry: "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else…A State cannot so deem a class of persons a stranger to its laws."[33] The Court's own reasoning evidenced that the sole question was whether a class of homosexuals may be singled out for disfavored treatment? Justice Kennedy's majority opinion made clear that under the equal Protection Clause, a homosexual class could not be disfavored.[34]

Having recognized the penultimate question that Amendment 2 posed the then-unique question of the proper legal status or preference which may be afforded a class of homosexuals, the Court's opinion is laid bare as a political act — a rejection of a political opinion [that homosexuals as a class are not entitled to preference in non-discrimination laws].[35] Further, the mere fact that the Amendment 2 received a 46% "No" vote signifies that it was a very closely waged political battle.[36] Moreover, as the three dissenting justices noted, a homosexual population of roughly 4% which garnered 46% of the overall vote does not suggest a politically unpopular group singled out for disfavored treatment.[37] Rather, it reflected an ongoing political dialogue in which one side lost one election. The political power of homosexuals has been borne out by other electoral gains.[38]

Justice Scalia's Romer dissent, among other scholarship, makes fair arguments that the Romer majority's opinion is irreconcilable with the Court's prior decisions upholding, for example, bans on polygamy or statutory forfeiture of voting rights by felons and polygamists.[39] Those particular arguments and comparisons, however provocative or substantial in their own right, are uninteresting to the primary question of whether the trend towards preferential judicial policymaking has terminated with the present National Security Agency wiretapping drama.

The State of Texas enacted a law prohibiting homosexual sodomy.[40] Two individuals convicted under the law challenged its constitutionality.[41] The Court utilized the substantive due process rational basis test, as it did in Romer, to invalidate the law, again holding that the majority may not use the power of the State to enforce ethical or moral principles.[42]

The question arises as to whether Lawrence is an example of judicial policymaking? On the one hand, the case was a Constitutional challenge arising from the criminal conviction of Lawrence and his co-defendant. These petitioners clearly had standing and a right to seek redress through the courts. However, several factors betray the opinion as judicial activism dismissive of pluralistic democratic process. First, the Court rejected stare decisis and overruled an on-point opinion only 17 years old.[43] Notably, the Court did not use a novel theory to circumvent its earlier holding in Bowers v. Hardwick in reaching its decision in Lawrence. It did not, for example, adopt an Equal Protection Clause analysis to avoid contradicting its earlier substantive Due Process Clause analysis in Bowers. Instead, the Court simply revisited its earlier ruling and overruled it. Second, the Court's failure to apply its own recent precedent is itself troubling. The mere overruling of precedent is not in itself proof of judicial policymaking. However, in light of the fact that the Lawrence majority relied heavily on its earlier opinion in Casey, to support its conclusion, the judicial policymaking determination is perfunctory.[44] The Court used Casey and its predecessor opinion in Roe v. Wade to establish the due process liberty interest which protects the right to private [homo] sexual conduct.[45] The Court then overlooked, deliberately it seems, that Casey's rationale rested on stare decisis grounds.[46] The Court, thus, used stare decisis to uphold the identical substantive due process right [to privacy] in Casey which it upheld in Lawrence by rejecting the same principle of stare decisis.[47]

Third, in settling an ongoing debate in the culture war, the Lawrence Court relied heavily on both the arguments and evidence submitted by the American Civil Liberties Union and on foreign law.[48] The need to circumvent American constitutional law begs the question of whether the Court's opinion was in fact based on Constitutional jurisprudence or was simply a desired policy justified by any support the Court could locate.

Fourth, the Court's own opaque reasoning in overruling Bowers, but not explicitly barring morals-based laws, suggests tortured, results-oriented reasoning.[49] By concluding that the Court's duty was to define the liberty of all, not to mandate its own moral code, the Court undertook the contrary. Justice Kennedy's majority opinion in both reasoning and result, firmly rejects morality or the desire to preserve traditional mores as a sufficient justification for class-wide treatment of homosexuals.[50] Rejecting tradition, or preservation of societal mores as a legitimate governmental interest would have sufficed as at least a consistent substantive due process clause analysis.[51] The Court, however, immediately dismembered its own calculus.

Whether one agreed with the Court's due process analysis or not, the analysis could be justified as a reasonable extension of both the Court's liberty analysis in Casey and its appraisal of classwide disfavored treatment of homosexuals in Romer.[52] Inexplicably, the Court immediately truncated its analysis by stating that its opinion did not implicate "whether the government must give formal recognition to any relationship homosexual persons seek to enter."[53]

The Court's statement is clearly designed to limit criticism that its decision in Lawrence would mandate same-sex marriage. This is troubling and illustrative of the dangers of judicial policymaking for several reasons. At a basic justiciability level, the Court's statement that Lawrence would not compel recognition of same-sex marriage, an issue not before it, appears to lightly tread the chasm between dicta and an impermissible advisory opinion.[54]

Next, the Court's self-indulgent foray into same-sex marriage illustrates that it was again cognizant of its intrusion into a cultural debate whose remedy lies in democratic procedures. [55] Most importantly, the Court's desire to limit its own opinion is a guilty "hand caught in the cookie jar" admission.

The Court clearly apprehended that its substantive due process analysis would naturally encompass a subsequent claim that an individual's liberty interest protected the right to same-sex marriage. The Court's eagerness to distance itself from its own analysis betrays its recognition, and rejection of, the reasoning employed to justify a preferred policy result. Nowhere in its other jurisprudence has the Supreme Court gone to such pains to self-limit its own reasoning. The Court did not, for example, in striking down Virginia's miscegenation law on Equal Protection grounds, mutilate its own reasoning.[56] In striking down the Virginia law banning interracial marriage the Court reasoned, "[d]istinctions between citizens solely because of their ancestry" are "odious to a free people whose institutions are founded upon the doctrine of equality."[57]

The Loving Court's reasoning was so unassailable that its command needed no self limit. One could hardly imagine Chief Justice Warren writing,

We hold the Virginia statute to be unconstitutional as an unlawful racial classification and illegitimate violation of the liberty interest and right to marry, but we do not mean to state by this opinion that individuals may marry chipmunks or that necrophilia must be recognized by the State.

Instead, the Court interpreted the law at issue in the context of both the Constitution's text and prior case law. Such is the business of judging. The Loving Court did not hurry to qualify its analysis though some of its language might easily compel the requirement of same-sex marriage or polygamy.[58]

The Due Process and Equal Protection Clauses alone have not formed the sole basis of attack of the Left's assault on democratic legislation. A majority of the death penalty states in the U.S. in 2005 permitted capital punishment for minors.[59] Seventeen year-old Christopher Simmons was convicted of murder and sentenced to death under Missouri's death penalty statute.[60] Simmons challenged his sentence under the 8^th Amendment's prohibition of cruel and unusual punishment, notwithstanding that the Supreme Court had held only fifteen years earlier that capital punishment was constitutional as applied to seventeen year old's.[61]

Justice Kennedy again writing for the Court held the Missouri statute unconstitutional as applied to minors on grounds that it violated the 8^th Amendment's prohibition on cruel and unusual punishment.[62] The Court invalidated the Missouri law, reasoning that evolving standards of decency had demonstrated a national consensus that the juvenile death penalty was cruel and unusual.[63] Several features of the Court's opinion evidence the use of the 8^th Amendment to dispatch legislation beyond the Left's democratic reach.

First, the Court rejected, as it did in Lawrence, its own recent precedent.[64] Worse, the Court did not reject its own reasoning in Stanford v. Kentucky on the grounds that it was decided wrongly, but instead reasoned that the Constitution's definition of cruel and unusual had changed in the span of fifteen years.[65] The mere reversal of precedent does not necessarily imply a political rather than a judicial act; however, it is noteworthy that the stare decisis reasoning used to prolong Roe's vitality in Casey was then supported by Justice Kennedy, but cast away in Roper.[66]

Second, the Court engaged in what can only be called mathematic gymnastics to create a "national consensus" that the death penalty as applied to minors was cruel and unusual. Earlier in Stanford the Court had opined that whether a national consensus exists should be determined by reference to state statutes.[67] Justice Scalia's Roper dissent recognized the Court found a national consensus against the juvenile death penalty because 18 states barred juvenile capital punishment.[68] As Justice Scalia so aptly stated, "Words have no meaning if the views of less than 50% of the death penalty States can constitute a national consensus."[69]

Third, is the abundant democratic hostility of the Court's reasoning. By devising an analysis which ignored precedent and looted the definition of "consensus" by defining it to include less than a simple majority, the Court clearly toiled to reach a result its earlier Stanford reasoning would not embrace.[70] Importantly, by declaring the juvenile death penalty to be per se unconstitutional, the Court forever removed the debate of the policy's propriety from the people or their elected representatives.[71] Indeed, those 18 States lauded by the Court as a national consensus are now forever foreclosed from reconsidering their policies.[72] It is an open question whether legislators in those states would have voted for the bans were they aware that their vote would be sealed in bedrock for all eternity by the Court, or had they been advised their vote on what may very well have been a public policy experiment, might be used to decide the same issue in every other State in the Union.[73] Indeed, a more provocative question might be the impact of other state policy experiments in euthanasia, medical marijuana, or mandatory health insurance?[74] The fifty state laboratories are likely imperiled by the Court's broad swath.

As the Supreme Court noted twenty years ago in another death penalty case, "In a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."[75] The Roper opinion is thus evidenced as judicial hostage taking of what are properly questions for the people and their legislatures. Justice Scalia noted this in his Roper dissent, pointing out, "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation."[76]

Fourth, is the Court's reference to foreign law and the advocacy of certain Left-oriented groups.[77] Again the contrast between Casey and Roper is instructive. The American Psychiatric Association's amicus brief played a role in the Court's conclusion that juveniles lack the cognitive development to appreciate their actions when embarking on a capital crime.[78] However, fifteen years earlier the American Psychiatric Association opined in Hodgson v. Minnesota, that juveniles were mature enough to decide whether to obtain an abortion.[79] Ignoring its own precedent the Roper Court simply "look[ed] over the heads of the crowd and picked out its friends."[80]

Section II: The War on the War Powers

And so now the Left comes to the NSA'S "domestic wiretapping."[81] Specific details of the covert program are scant, but the general thrust of the program appears to be that beginning in early 2002 the NSA began monitoring telephone numbers and email addresses discovered in the computers, cell phones, and address books of captured Al Qaeda operatives.[82] The surveillance program is focused primarily (71%) on foreign targets, but has included the monitoring of communications with persons in the United States.[83]

The Administration's warrantless surveillance of calls between some US citizens and members of Al Qaeda is lawlessness run amok, exalts a reinvigorated and excited Left. The President may be impeached for this, warns Democratic Senator Barbara Boxer — a model of Leftist dialogue and theory — because he has admitted he did not follow the Foreign Intelligence Surveillance Act ("FISA").[84] The charge may have factual merit, but as discussed, infra, is legally askew.

FISA governs electronic surveillance for "foreign intelligence information ."[85] FISA states a President may get judicial approval from a FISA court to obtain foreign intelligence information.[86] FISA permits the Executive Branch to seek a warrant to conduct surveillance before or 72 hours after conducting a search or surveillance in foreign intelligence cases.[87] The Bush administration has offered two principal justifications for the NSA program: 1) the Congressional Authorization for Use of Military Force passed after the September 11^th attacks and; 2) Constitutional authority.[88] While the former almost certainly justifies the NSA program, this article concerns only the Constitutional Article II justification.[89] Article II, Section 2 of the United States Constitution states,

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.[90]

The Left maintains that the NSA program violates the FISA warrant requirement and is, hence, unlawful. What arises is a fundamental contradiction between an explicit article of the Constitution and a federal statute.[91] It is an elemental inquiry into whether Congress can act as a check on the Executive's war powers going to the basic principles of the Constitutional structure.[92]

As a threshold question, this inquiry demands a determination of whether the United States is in fact at war such that the Executive's Article II war powers are invoked? The absence of a formal Congressional declaration of war in this instance is unpersuasive. Likely dispositive is the Authorization for Use of Military Force, which declared the President may use "all necessary and appropriate force" against nations, organizations, and persons associated with the September 11^th attacks.[93] The Congressional Authorization clearly intended and authorized use of the American military forces. As Commander in Chief of those forces the President's war powers are necessarily implicated.[94] The Supreme Court confirmed this when it reasoned that, "There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the Al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.[95] The NSA program is directed at Al Qaeda and its members and supporters.[96] Thus, the President's Article II war powers are involved.

That the War on Terror crosses transnational boundaries including the borders of the United States, or that it implicates citizens of numerous nations including this Nation's, only serves to heighten the Constitutional powers delegated to the Executive, not to diminish them. As Alexander Hamilton famously wrote in Federalist No. 74,

Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.[97]

The Supreme Court has long paid heed to Article II's plenary grant of power to the Executive branch in its exclusive delegations.[98] In addressing the President's foreign affairs' powers in 1936 the Court reasoned the President "has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results."[99]

As Justice Thomas recognized in his Hamdi dissent, judicial interference in the foreign affairs domain destroys the purpose of vesting primary responsibility in a unitary Executive.[100]

The FISA law itself contains a check in that a FISA warrant requires a certification from a national security officer.[101] Nonetheless, some on the Left have charged that the Administration's interpretation of Executive power leads to an unchecked presidency.[102] The Founders considered and rejected such a contention. The Constitution provides a check to the Executive's power over the military by vesting in the Legislative Branch the sole authority to raise armies, and to declare war.[103] But that the Constitution vests the war making authority in the President seems beyond dispute.[104] Thus, the Constitution's own internal framework checks Presidential power while at the same time energizing the Executive. Congress likely has many checks on the program, including defunding the program or the NSA entirely, but rewriting the President's Article II war powers is not one of those options.

Nor is the uniqueness of this war a substantive charge. That the war on terror might last for years, decades, or even generations does not lessen the Constitutional gravamen set forth in Article II, Section 2. National security surveillance by its very nature differs from criminal justice surveillance and is often long range and interrelates various sources and types of information.[105] That it might embrace technologies never contemplated by the Founders, or be fought among bits, bytes, and radio waves does not diminish the wisdom of Article II's delegation to the Executive. As Hamilton wrote in 1787,

The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.[106]

The very issue posed by the NSA Program is nothing less than the authority of the President to conduct war. The Supreme Court has long recognized the President has constitutional authority to protect the national security and that such authority carries broad discretion.[107]

The Foreign Intelligence Surveillance Court of Review sidestepped this critical issue in 2002.[108] In In re: Sealed Case the FISA Court of Review rejected restrictions in a foreign surveillance warrant placed on the government by a FISA judge based on both statutory and constitutional grounds.[109] In that case, the trial court granted a Justice Department application for a FISA court order, but further required that certain other restrictions be met, including that the Department's "law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances."[110] This was the now-famous "wall" between intelligence gathering and criminal investigations referred to at length in the 911 hearings, and Congressional debates over the Patriot Act.[111]

The FISA Court of Review invalidated the restrictions placed on the warrant on several grounds, the consideration of which illuminate the Constitutional question at issue here. Most importantly, the Court of Review reversed the lower court's restrictions on the grounds that the court's order unconstitutionally usurped the Executive Branch's powers.[112] Specifically, the court concluded that the lower court's order impermissibly interfered with the Attorney General's Article II authority to determine how to deploy personnel resources.[113] The Court relied on the Supreme Court's language in Morrison v. Olson, wherein the Supreme Court cautioned the D.C. Circuit to avoid administrative guidance to the Independent Counsel as actions having "serious constitutional ramifications."[114]

Thus, the Court of Review recognized specifically in the FISA warrant context that the FISA warrant process can, and in that case did, tread dangerously close to Constitutional separation of powers issues.

The Court of Review's rejection of the lower court's restrictions [on the court order approving surveillance] was ultimately based on a statutory analysis of FISA and a finding that FISA amplified the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supported a conclusion that the FISA searches were constitutionally reasonable.[115] The Court, however, did take for granted that the President did have constitutional authority to conduct warrantless surveillance for foreign intelligence purposes.[116]

Next, the Court of Review explored without extending, the Supreme Court's holding in its Keith decision.[117] The Supreme Court in Keith adopted the view that a more relaxed warrant could suffice in domestic intelligence searches.[118] The Court of Review noted the Keith Court had avoided the issue of warrantless foreign intelligence searches; however, the Court elected not to take the next step and explicitly follow the Fourth Circuit's reasoning in Truong and embrace Keith's unanswered query.[119] In that the Court had already concluded reversal was required based on the FISA statute itself, and in that it had already assumed the President's inherent authority to conduct warrantless foreign intelligence searches; the Court's decision not to overtly answer Keith's unanswered question was likely more a question of judicial restraint rather than substantive deliberation.

Indisputably, FISA exists and the President apparently did not use its warrant provisions before or after conducting the NSA surveillance. However, FISA is an act of Congress, not a constitutional article. The President is vested, by Article II, with an inherent authority to conduct war. The Founders took care in making this delegation plenary:

Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.[120]

That Congress through FISA gave the Executive an additional basis upon which to exercise its constitutional powers was considerate, but in a time of war such a legislative grant is redundant and, in this case, unconstitutionally inimical to the separation of powers.[121] Analogously, Congress might also pass a law authorizing the President to receive ambassadors, or authorizing itself to pass laws relating to interstate commerce, naturalization, or bankruptcy. But such laws are duplicative of inherent powers under the Constitution.[122] While Congress might legislatively bless certain plenary powers of the President, it cannot remove them.[123]

Section III: Noseless Victories: The to Legislate or Not to Legislate Quandary

In the case of the NSA'S surveillance program the Left has finally discovered Article I and has decided that they like FISA more than the Constitution. Thus, they face an intellectual and practical dilemma. They can continue to insist that FISA somehow subverts or supplants the explicit and plenary war powers granted by Article II to the Executive Branch. Or the Left can protect decades of jurisprudential wizardry and concede to the Executive the Constitution's explicit endowment.

Continuing to rely upon Article III courts as a venue for preferential policymaking carries its own risks, however. The intrinsic dilemma posed by judicial lawmaking is that each case addresses only one policy. The selective and myopic use of the courts to reverse democratic failures can produce unintended consequences and Noseless Victories.[124] The Left's obsession with two issues, abortion and capital punishment, provides an illustration.[125]

Abolition of the death penalty has long been a shibboleth of the Left.[126] In 2004 that objective came closer to reality when the Supreme Court abolished the juvenile death penalty in Roper. However, in implementing its litigation strategy the Left arguably dynamited the foundations of the right to abortion. As discussed previously, the right to abortion narrowly escaped judicial reversal in Casey, surviving on the slimmest string of stare decisis.[127]

In Roper as well as in Lawrence, the Supreme Court turned its back on recent precedent and impliedly cast away stare decisis as a defining judicial principle.[128] Further, Casey and Roper both made an important doctrinal shift in constitutional analysis: each allowed for changes in science and mankind's knowledge of itself to justify abandoning precedent and rewriting both the constitutional inquiry and the analysis by which it is made. In Casey, the Court altered its trimester inquiry established in Roe, replacing it with a more flexible viability standard precisely because medical advancements had revealed Roe's trimester system to be inconsistent with scientific fact.[129]

Roper too, used science to justify its result. In determining that evolving standards of decency forbade execution of minors under the age of eighteen, the Court relied heavily on the science of psychology. The Court girded its opinion on scientific evidence that juveniles' lack of maturity and underdeveloped sense of responsibility are found in youth more often than in adults and are, thus, more understandable among the young.[130] In so doing the Court relied heavily on the amicus briefs of the American Psychiatric Association (APA) and the treatises on juvenile psychology and child development cited therein.[131]

As discussed briefly in Section I, the APA opined in earlier abortion cases that juveniles did possess the requisite maturity to make moral choices about abortion, yet supplied science to the contrary in Roper. It may very well be that that the science of child development and neurology had evolved in the intervening years.[132] Nonetheless a significant nomological predicament has been posited.

Casey, though upholding Roe, left room for refinements to its central holding based on evolving science in maternal health and fetal development.[133] This "sliding-stick" holding left Roe untouched only by yet to be discovered science. Science in its present state, now defines fetal viability as early as 23 weeks in contrast to Roe's formulary of 28 weeks.[134] Of course, Casey's principal foundation was stare decisis, a judicial cornerstone ripped conveniently asunder in Roper and Lawrence. The Left, hence, must now contemplate the very real possibility that its single-minded quest to overturn the death penalty may have laid a jurisprudential basis for Roe's reversal.

Indeed, the United States Supreme Court had agreed to review the constitutionality of the Partial Birth Abortion Ban Act of 2003, a statute which the Court held unconstitutional only six years ago.[135] Moreover, the United States' chief contention in that case is that the volume of medical knowledge available now concerning the partial birth abortion procedure raises doubts as to the continued vitality of the Court's 2000 opinion in Stenberg v. Carhart.[136]

The unintended consequences at play between Roper, Lawrence, and Casey illustrate the hyper-folly in judicial legislation. Their interaction also illustrates the dilemma the Left faces in confronting the NSA program. Literal adherence to a Congressional act the Left in this case prefers (FISA), in opposition to explicit powers granted under Article II may erode a decades old and largely successful strategy of using the Constitution, implicit or explicit, to accomplish unreachable policy gains.

Conversely, the Left could embrace their newfound love for Article I democracy, and maintain that the courts are no longer the place for public policy battles. This might, however, prove unworkable in the majority of the country where the Left's secular agenda of gay marriage, rights for Guantanamo Bay terrorists, abortion on demand, and opposition to the Pledge of Allegiance are unpopular.[137] Democracy can be so very pedestrian and unaccommodating; nothing like the high octane intelligence required of public policy by Constitutional jurisprudence.[138]

Or, the Left could admit that it is only some acts of legislation, and some clauses of the Constitution, which they prefer. For example, the 8^th Amendment[139] or the church-state wall of separation clause of the 1^st Amendment.[140] The Second Amendment seems unpreferred.[141] Congress' interstate commerce power? Unpreferred where interstate commerce power is used to block Internet taxes, medical marijuana, or federal gun free school zones.[142] To support federal minimum wage and other labor laws or to authorize environmental regulations, Article I Section 8 will suffice nicely.[143] Federal immigration power will do if it requires the states to keep funding the medical care and education of illegal aliens.[144] Federal overreaching and bigotry if the immigration power seeks to control the borders or regulate drivers' licenses.[145]

Section IV: Conclusion

Ultimately, picking and choosing when and which clauses of the Constitution matter, could become a time consuming process interfering with, for example, the impeachment of George Bush. As demonstrated above, the single minded pursuit of the abolition of the death penalty through the courts may have sown the seeds of Roe's reversal. Continued insistence that FISA overrides constitutionally-endowed Executive authority is the type of jurisprudential argument likely to cause unintended consequences for later policy debates. Or perhaps this new love affair is just a tryst, a one night fling to be forgotten as soon as its enjoyment (or George W. Bush) is gone?

Endnotes

[1] The label "Left" or "the Left" is not a pejorative. See discussion, infra.

[2] "Rights" or "rights" refers to the Bill of Rights through and including the Fourteenth Amendment.

[3] The National Security Agency (NSA) program was disclosed by a New York Times article which reported that President Bush had authorized the NSA to monitor the international telephone calls and emails of U.S. citizens and residents without court-approved warrants. See, Dan Eggen, "Justice Dept. Investigating Leak of NSA Wiretapping," WASHINGTON POST, December 31, 2005, at A01.

[4] The author does not define the Left to include, e.g., all liberals, or all Democrats, or all of any other group which may share ideological agreement with the Left as defined in the discussion herein. Further, the author is amusedly cautious of the Supreme Court's conclusion that all classifications erected around politically unpopular groups are unlawful and evil. See, discussion of Romer v. Evans, 517 U.S. 620 (1996), infra.

[5] See, Robert H. Bork, Slouching Towards Gomorrah, at p. 96 (1996).

[6] Ibid. at p. 97. Bork argues that the ACLU'S brand of radical individualism which advocates, inter alia, that nude dancing is protected free speech or that metal detectors in airports are an unlawful intrusion upon private autonomy is internally discordant in that the organization favors more and substantial limits on individual choices in areas such as affirmative action or employer's rights. Id. at 97-98. The dichotomy of favoring individual choice while rejecting electoral choice is explored more thoroughly by evaluating the Supreme Court's decisions in Romer v. Evans, and Lawrence v. Texas in particular, infra.

[7] See, James Madison, federalist no. 39. In Federalist No. 39, Madison extolled the virtues of the Constitution's framework: republican government neither wholly national in form nor wholly federal, a framework equally deriving its authority from the consent of the majority and the confederation of states.

[8] See, US CONST., ART I, §1[establishing Congress with all legislative powers], US CONST., ART II, §1[vesting executive powers in the President of the United States], US CONST., ART III, §1[The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts...], U.S. Const., amend X [The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."].

[9] James Madison, federalist no. 39, "In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."