- People in the past weren’t morons. Justice Breyer kept going on about how the founders couldn’t understand the world we live in today. How they couldn’t even imagine it. Horse pucky~! While they may not have envisioned it at the time If me and Mr. Peabody go back in the way back machine and talk to folks like Hamilton, Jefferson, Madison, and Franklin they could handle the world we live in today ( though Jefferson would be irked Hamilton turned out to be right.)
- Justice Breyer is dead wrong that the Constitution wasn’t set up to handle such things. The Constitution was crystal clear… it largely said “don’t do that” but it was pretty clear how these sorts of things would work out. The 9th amendment is VERY clear that these aren’t all the rights there are. Privacy is put in all manner of rights amendments as it is ( the first just starting them off)
- Hush was wrong here in his statements about the Right to privacy. The right to privacy is built backbone into several other rights largely because no one at the time would have thought you needed to spell that out specifically. They thought we would be smart enough to figure that out on our own. And they also left us two wonderful outs ( the 9th and 10th amendment)
- There are times when it isn’t in black and white what the founders’ intent is. And the approach isn’t in pure literalism, nor is the approach in the squishy “living documentism” that is believed by folks like Breyer. I tend to think of it like this If I could call up John Jay, John Madison, John Hamilton, Ben Franklin, and Thomas Jefferson and say “Ok this is the problem how do I solve it.” I think you can make reasonable deductive guesses about it.
I think Breyer was far more dismissive and intolerant