Thursday, October 20, 2005

Result v. Process

Concurring Opinions has a post up on some of the groundbreaking decisions of the past century that could be considered more result-oriented than process/analysis-oriented. Associated primarily with Roe v. Wade, these cases have brought an end to segregation, prohibited government bugging of private homes without a warrant, ensured we're informed of our rights when arrested of a criminal charge, and allowed us access to birth control (which was actually banned), and so forth. The debate still rages, however, whether judges should be allowed to search the caselaw, statutes and the constitution for support of a desired result (result-based), or be required to reach whatever result ensues from applying precedent, even if it's blatantly wrong or unjust, and let the legislature sort it out. To take things to some extreme (most people fall somewhere into the spectrum, not at the far ends of it, strict constructionists are primarily concerned with fairness in process - it's what's predictable and required by the past, and it wouldn't be fair to change the rules for you. So sorry if everyone agrees it's a travesty of justice. Justice ain't really the point. On the other hand, the result-based thinkers seem to be unbothered by the fact that a "penumbra" of privacy in the Constitution can basically be stretched to encompass a huge amount of "rights" that would have horrified not only the original framers, but people of our parent's generation. And while it's primarily associated with "liberal" causes, remember it can go many ways on the political spectrum - remember the "freedom from" in A Handmaid's Tale?

Personally, for what it's worth, I'm in the middle. (I guess I'm not planning on getting to the Supreme Court anytime in the future, since I'm willing to disclose this). I'm okay with result-oriented rulings, so long as they have adequate support in the text of the constitution/law/precedent. But I want you to find it in the text. Not extrapolate from a mishmash of concepts underpinning the text, at least in your opinion.

Anyway, the post presents an interesting question: how would the issues have been resolved from a process-based analysis?

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