The Unregulated Offensive

After reading the entire article and thinking about it for a couple of days, one thing that strikes me is that the author, Rosen, seems to imply that the Constitution in Exile movement is promoting judicial activism to accomplish their agenda. He states "Nevertheless, it is a troubling paradox that conservatives, who continue to denounce liberals for using courts to thwart the will of the people in cases involving abortion and gay marriage, now appear to be succumbing to precisely the same temptation." One interpretation of this sentence in the context of other statements in the article, is that the movement is promoting "Judicial Activism."

This all depends on how one defines "Judicial Activism" In the online edition of A Glossary of Political Economy Terms by Dr. Paul M. Johnson of Auburn University, Dr. Johnson defines it as:
"The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society."

However, I do not believe that striking down laws on behalf of rights that don't appear explicitly in the Constitution is "judicial activism." In fact, I believe this is a form of "judicial restraint" or more appropriately "proper judicial restraint of the legislature" Which is a proper, constitutional purpose of the judicial branch.

Noted scholar Thomas Sowell agrees with me. See his article, Judicial Activism Reconsidered, on this website: http://www.amatecon.com/etext/jar/jar.html

It is quite interesting that the party currently out of power has been reduced to using Senate procedural rules to thwart the will of the electorate that gave the republicans the majority in congress. I also reject the use of the label "nuclear option." It suggests that changing the Senate procedural rule is some kind of scorched earth, kill them all, weapon. I see little practical down side to changing the rule to eliminate the fillibuster on judicial nominations, even if the democrats regain a senate majority. We will still have a senate up or down vote on nominations.

I do not believe that striking down laws on behalf of rights that don't appear explicitly in the Constitution is "judicial activism."

Sure it is: It's blatant disregard of the 9th Amendment.

Our Constitution is based on English Common Law (as are the Constitutions of 49 of the 50 states.) As such, the Constitution limits the powers that the government has - it doesn't delineate the rights of man. A number of the Founders were concerned that the explicit listing of some rights in the Amendments (because they are so important) would become construed to mean that these are the only rights citizens have. Their concern was well justified.

thanks for your excellent reply.

i'm not a lawyer; i'm learning myself from this discussion.

i agree with you that rosen is saying that conservatives are promoting "judicial activism" for these reasons: he, like other democrats, are on the same page and are reflecting back to the republicans our criticism of them. i see it all over, for example, in the nyt.

thanks for the sowell article:

When concrete cases are decided seriatim, it is sufficient in each case to determine if the specifics of that case fall inside or outside the boundaries of possible cognitive meanings of the instructions. Those who have set themselves the very different task of weighing values from various constitutional, statutory, and other sources, have taken on a much heavier responsibility, a more vaguely defined goal, and a quest without legal authorization.

My sentence that you quote: "I do not believe that striking down laws on behalf of rights that don't appear explicitly in the Constitution is "judicial activism" adopted a portion of the language used in the article: striking down laws on behalf of rights. From your reply I understand you to be saying that you agree with my position. By "striking down laws on behalf of rights" I mean: striking down statutes passed by congress or the states (laws) that conflict with fundamental rights of individuals that are in addition to those rights specifically spelled out in the Constitution. I adopted the language understanding that "on behalf of rights" modifies or explains the basis to "strike down" the laws, not to modify or designate the type of laws that are struck down.

When I first read the article, I interpreted it to mean what I believe you are interpreting it to say. After studying it, in context, I changed my opinion of what the author intended, to what I explained above.

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