The Mobile Register opinion page raises a question that I would like to open up for debate. What is the appropriate role of the judiciary? The Register contends:

We join the majority of Americans in believing that a perfect Constitution might explicitly recognize at least some realm of protected privacy within a home, beyond existing guarantees against unwarranted search and seizure. We also believe that legislatures have better things to do than to regulate such private consensual conduct.

But for the U.S. Supreme Court to rely on unspecified transcendencies, and on foreign governmental bodies, in order to force legislatures to be sensible, is for the court to turn the American constitutional order upside down.

Of course, as we were all taught in high school civics, the legislative branch makes laws and the judiciary interprets them through the lens of the consititution. Under this view of the process, the opinion writer would be correct. If it’s consitutional, then there is nothing the Supreme Court can do about it. This is that “legislating from the bench” debate that we hear so much about.

Is the Constitution just explicit words or is there a spirit of the law as well?