Sorry to start something and disappear – I was out keeping my 3-year-old out of the clutches of our public school system (it’s not California, but you never know …)

Jonah, for my money, one of the two toughest issues in Constitutional law is to get a principled grip on unenumerated rights. (The other, which Ramesh has referred to a couple of times lately, is getting a principled grip on when incorrect precedent should be reversed versus when the interest in stability outweighs the value in being right.) There have to be unenumerated rights – the Declaration of Independence says life, liberty and the pursuit of happiness are only “among” the “certain unalienable rights”; but it doesn’t tell us what the others are. The Ninth Amendment indicates there are other rights retained by the people beyond those enumerated in the Constitution. That’s all fine, but what are they?

If you conclude that the judges get to decide, and they naturally come up with impossibly subjective tests like “what is implicit in the concept of ordered liberty?”, it seems to me that you’ve lost democratic control. Everything they thereafter decide is a “right” derived from the Constitution becomes immune from popular tinkering absent amending the Constitution, which, for good reasons, is very hard to do.

So the only sensible thing to do is proceed from the assumption that if a purported “right” is not written into the Constitution, if it’s not absolutely essential to vouchsafe the rights that are articulated there, and if granting it “right” status would necessarily empower the federal government to control things it wouldn’t otherwise be able to control (which would violate the Tenth Amendment), then it’s not a right. If people want it, they have to convince their fellow citizens to enact it as legislation.

This can lead to some shaky results. But mainly it shifts the burden of the results from the courts (where a bad result can’t realistically be changed) to the legislatures (where such a result can readily be changed). That’s not a perfect system, but it’s a much better system than rule by the judges.

Your point about California shows well how screwed up we have become by decades of judicial rule. If the people in California were living under peculiar rules not because of crazy 9th Circuit decisions but because they had chosen those results, then that would be fine – they’d have schools we’d think were nutty because that was their choice. But the rules are judicially imposed, making the people who disagree with them feel powerless to change them. And making them think it would probably not be better if they moved someplace else, where it’s only a matter of time until other judges follow the 9th Circuit. They may as well stay, send their kids to private schools or home school them, and grumble as they subsidize the lousy public schools with their tax dollars.

But if courts stayed their hands, then the losers are suddenly in the game. First off, they wouldn’t lose as often if what they wanted to institute was popular. Further, they could work to change the rules without seeing it as a lost cause; or go someplace else more amenable to their way of thinking, confident that things in the new place were likely to stay that way. With more democratic effectiveness and more mobility, a state wouldn’t get artificially bluer. It would either have to hew to the popular will or lose the tax base necessary to sustain unpopular policies.