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Joel, I think you're right that this does fundamentally have to do with the balance of the branches. I don't want to overturn Marbury v. Madison, I just want it remembered that judicial review means REVIEW, not creating new legislation. One branch legislates, another executes, and they keep an eye on each other by proposing legislation and congressional oversight. Then the judicial branch oversees it all, and makes sure the law is obeyed, especially the highest law of the land--the Constitution. Naturally, each branch over-reaches, and tries to grab more power. It's the responsibility of the other branches to make sure the balance isn't destroyed. The problem is that since the Warren court, the Supreme Court has thrown that balance off, with that annoying liberal hypocritical stance of taking what is essentially a moral stand to justify unelected judges forcing their will on the majority. And you know it's force, because if the majority wanted it, at least one of the other branches would take the stand. That's not to say that there aren't good decisions, like Brown v. Board of Education, that were unpopular. But they were also following the law, and made real change because another branch--the executive--made sure it was enforced, and stood up to the Democrats who wanted to keep segregation. On the other, Roe v. Wade forced an issue that was already changing across the country, and made it a lightning rod issue.

...because I'm in between things, on my way out the door to a concert.

Brad: I want to be clear that I hadn't -- thus far, at least -- raised the issue of privacy as far as abortion is concerned. I don't think that everybody who is anti-abortion is anti-birth control, and if it seemed that I was lumping in everybody together, then I hope you'll take this statement as clarification.

And it may be that we're trying to take on too many topics for this one poor blog entry to bear. But let me go back to the beginning.

* I think there is a right to privacy.
* I think one's decision to use birth control would be covered under that right.
* I think there's reason to believe that Sam Brownback would help appoint judges who think otherwise.
* And all of that is a reason not to want John McCain, who says Sam Brownback would help him pick judges, as president.

I don't think the "not privacy" arguments you make against abortion are applicable to the birth control issue. But I think it is possible that the right to birth control might actually be at stake. And that, more than abortion, is what I'm trying to explore here.

Don't worry: I know that we'll definitely get into the issue of abortion. But like you, I think this is a somewhat separate topic.

Yes. My answer is "yes." And this is just a quick hit (I'll return later when I have more time, I promise). But the conservative argument against campaign finance restrictions does not rely on penumbras as much as it relies on the clear language of the First Amendment: "Congress shall make no law ... abridging the freedom of speech ..."

So, walk with me now. Combine the well-documented intent of the authors and signatories of the Constitution -- along with the context of another part of the First Amendment that protects the right "to petition the Government for a redress of grievances" -- and it is clear that our founders were more interested in protecting the people's right to speak about their government than about, say, protecting the right to "speak" by publishing pornography. Yet the first is prohibited, while the second is virtually unlimited. Any penumbra-relying here by conservatives (and I'm not granting you that fully) is certainly less convoluted than what even many left-leaning scholars admit is a shaky basis for Roe v. Wade.

The problem conservatives have with many liberal jurists is that they seem to don the night-vision glasses in order to navigate "the shadows," but close their eyes to the Constitution's bright lights.

Joel, I appreciate your position here. Naturally, I disagree with your conclusion about the threat to individual rights. What would happen if the Supreme Court overturned Griswold v. Connecticut or Roe v. Wade? That's easy: abortion and birth-control policymaking would return to the states, where it belongs.

Although I think Brownback is more right than wrong, he spoke awkwardly. Most Republican politicians do. Let me see if I can make it clearer.

Judges don't get the last word on what the Constitution means. We're not ruled by judges. The legislative and executive branches have an equal say.

For further elaboration, see here, here, and here.