Libertarian Judicial Activism

7/2/03 | William McKinley

[William McKinley]

I did not say anything of Grutter was libertarian anything.

[cherrycapital]

>And if you are going to cede the power of governance away >to such a chamber of rulers, why not go the full monty >and support a benevolent dictatorship?

Because there is no need to do so. There are indeed times when a benevolent dictatorship is better than a democracy; Chile in 1973 was one instance. But in the U.S. in 2003 we are better off merely having the swamps of public prejudice ventilated by a Supreme Court that lives up to its duty to protect our rights. Voting to oppress others is not one of our rights.

Democracy is like oxygen. In its proper proportion it nourishes. In pure form it deranges. Conservatives used to understand this principle (in fact, it was the John Birch Society that revived the notion that the United States is a republic, not a democracy.) But when the cherished right to oppress homosexuals is threatened, democracy becomes their adopted buzzword.

>And why is it so important to you that it be protected >under the Constitution instead of simply getting the law >changed (if a persuasive argument can be made to the >people, as indicated by their votes for their elected >officials)?

Basic human rights should not be at the mercy of the loathsome rednecks who wouldn't know a syllogism from a transit of Venus, but who (sadly) make up a majority of the electorate. As Justice Robert Jackson explained it:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (West Virginia Board of Education vs. Barnette, 1943)

>I am sure you have not liked SCOTUS rulings that have >eroded the 2nd Amendment.

I am unapologetic in applying an apparent double standard here. There is all the difference in the world between a ruling expanding the rights guaranteed by the Constitution (as in Lawrence and Limon) and a ruling contracting them (as in certain 2nd Amendment cases). As Justice Brennan put it "The Constitution is not a neutral document. It was designed to get the governmnent of the backs of the people."

[DPB101]

Many Libertarians are very comfortable with the Federal courts censoring religious expression. They usually scurry down the "government shouldn't be doing it anyways so who cares if religion is banned from public schools" rathole.

[Cultural Jihad]

I am *asserting* that the state has no right whatever to criminalize a consenting relationship between an 18 year old and a 14 year old.

You are on the wrong forum if you are trying to advocate the pedophilia is a Constitutional right or that minors are able to give consent.

[cherrycapital]

Judging by the fact that you don't even know what the term "pedophilia" means, I'm not sure you're in a position to tell me what forums I should or shouldn't be on.

[William McKinley]

Heck, why have a Constitution at all then. You are right- someone like you should not support the Constitution, as it is meaningless for you.

[cherrycapital]

The point of having a Constitution is utility. It is more useful, in nearly all cases, than having each individual having to defend his/her own rights by force. That doesn't mean that patently oppressive laws need to be honored in the name of the Constitution. To do so would be sacrificing the end to the means. Constitutionalism, republicanism, and law itself are only means, not ends.

[dirtboy]

That doesn't mean that patently oppressive laws need to be honored in the name of the Constitution. To do so would be sacrificing the end to the means.

So the fedgov SHOULD enforce rights not enumerated in the Constitution? Congrats, you just killed the 10th Amendment, which pushes that debate to a playing field between the states and the people living in each state.

[cherrycapital]

Does the 9th Amendment mean nothing at all?

[dirtboy]

Does the 9th Amendment mean nothing at all?

Yes, as a constraint on federal power to limit rights. Otherwise, you've destroyed the 10th, because the feds can declare ANYTHING a federal right and the 10th becomes null and void.

[cherrycapital]

Sorry, but the 14th Amendment applies the protections of the Bill of Rights to the states, and no amount of casuistry can change that. What is more frightening than the fact that anyone would deny that the Bill of Rights is binding on the states, is that anyone would *want* to.

[dirtboy]

Sorry, but the 14th Amendment applies the protections of the Bill of Rights to the states, and no amount of casuistry can change that.

You do that, and the 10th is null and void. And SCOTUS has, I believe, exactly TWICE referenced the 9th Amendment, whereas it has referenced the 10th many, many times.

What is more frightening than the fact that anyone would deny that the Bill of Rights is binding on the states, is that anyone would *want* to.

You have a contradiction, the same as the one used by the gun grabbers with the 2nd. The 10th is part of the Bill of Rights. But it is not a restriction on the states. Federalism is not just about the rights of the people, but also is about the powers of state government and limiting the power of the fedgov to restrict what states can do. Your expansive reading of the 9th is consistent with activism, not conservatism.

[cherrycapital]

The 9th Amendment via the 14th prevents the states from violating the rights of individuals.

The 10th Amendment prevents the government from violating the rights of states or individuals.

Since it is not one of the rights of a state to violate the constitutional rights of citizens, there is no contradiction. There are plenty of powers and prerogatives remaining within the authjority of the states that do not involve the violation of the rights of citizens.

[cherrycapital]

How is using the 9th Amendment to protect unenumerated rights the same as the gun-grabbers violating enumerated ones? By and large, they use state laws as much as federal laws to do that.

[Cultural Jihad]

The crypto-fascist-libertarians are busy at work burying the 10th Amendment.

[dirtboy]

The 9th Amendment via the 14th prevents the states from violating the rights of individuals.

Once again, SCOTUS has seldom cited the 9th. Try again.

The 10th Amendment prevents the government from violating the rights of states or individuals.

Now, if the fedgov, through the 9th, were to define something to be a federal right that was not enumerated by the Constitution and not allocated to the fedgov, then the 10th is cheapened - or even destroyed if it happens enough. And what's next? Does healthcare become a right, and the fedgov usurps power over medical resoures that belongs to the individual? It's no different, usurping state power or usurping the rights of individuals - you may applaud the work of the federal Frankenstein today, but don't be surprised when it turns on you tomorrow.

I don't think sodomy should be outlawed by the states. But I also don't think it is a federal right or issue to be imposed on the states.

[HurkinMcGurkin]

And if a collection of semi-educated judges determines, since you empowered them with the rule of man rather than the rule of law,

Laws such as sodomy laws ARE the "rule of man". Many people keep making this same mistake. But they have been conditioned to, I guess.

[William McKinley]

So you support having the Constitution mean only whatever a group of 5 people decides it to mean?

[HurkinMcGurkin]

Strawman

[dirtboy]

Strawman

Hardly ... because that's what it boils down to anymore.