Activist Judges

[Vineyard]

You disagree with me on the "enlarging on person's rights at the expense of others .." but your disagreement with me isn't based on FACTS ... but just someone in denial.

Rent-control laws TAKE from one to give to another. Whole rights are fabricated for renters, and real rights are deprived for apartment owner.

Victims loose their right to justice and being made whole - when basic rights to a defendant are ENLARGED to include the right to extra-Constitutional protections and the "right to be turned loose" if the police don't follow an exotic fan-dance in a precise manner stipulated by some judge.

You might disagree with me - but your disagreement is baseless. Sure - there are possible occassions where someone's rights can be increased without decreasing others . . . but I await a few examples. In the mean time - perhaps consider the courts approving laws that take away basic 2nd amendment rights to keep/bear arms. Rights lost - and criminals can feel more secure.

The 13th through 15th Amendments and related legistlation RESTORED rights that were formerly denied to persons who were part of oppressed minorities . . . rights that should have been inherent with the words of the Declaration of Independence ( "..all men are created equal and are endowed by their Creator with certain inalienable rights, ...") But note that these are Amendments to the Constitution .... and the Constitution should be revised by the process called for in the Constitution rather than relying on unelected/unaccountable judges to "determine" (based on their own feelings and sense of importance, and perhaps - arrogance.)

Mike

[j.havenfarm]

Your courtesy is exemplary. Rather than rehash and go on at great length, let me just repsond to this point of yours: "Choosing whether or not to trump state law with a federal ruling becomes a matter of whether the citizen can receive due process and equality from the state." That's the nut of it. I would ask the collective citizens of any state: If you can't get "due process and equality" from your Legislature, why did you elect them, and why don't you elect yourselves a different one? Now, there's explicit Constitutional sanction for "trumping" on some issues, e.g., race discrmination under the 14th Amendment, but it is the Constitution, not scripture, clerics, philsophers, or the concensus of legle elites, etc. from which the Supremes derive their legitimacy, and going beyond the Constitution through convoluted semantics is just plain anti-democractic. Witness the court ruling imposing solutions, against the majority will, on busing, affirmative action, in some states abortion, in the 70's the death penalty - later backed away from, and, coming soon, gay marriage.If you want to abolish the sovereignty of the states or have courts be super legislatures, then great--- abolish the Constitution or pass the appropriate laws to bring that about in the democratic process. It's this well-justified feeling that the match is being gamed by the umpires that galls conservatives.

[Sachem]

Hello Mike,

Whatever I might have said, I don't agree that it is constitutional to enlarge a person's rights at the expense of others. The defect is in the "expense of others" part, because, as explained regarding the development of the Bill of Rights, a person inherently has all possible rights not as the gift of government or the Constitution, but there is no right to infringe the equal rights of another. See the Madison and Jefferson quotes since they are probably clearer than I.

So, I don't see any of the founders using any argument about "enlarging" someone's rights, but I do see them warning the government against infringing rights which are not specifically called out. I'd be glad to reconsider if you can otherwise explain the 9th amendment or its similar antecedents in the state constitutions and especially if you can cite contemporary authority that won the day on that issue.

As for rent control, I don't see what the justification is, as it seems also to me as an unconstitutional taking of the property owner, and further, an anti-competitive insult to the free market for rents. I don't justify rent control.

Not so Miranda. At the time of ratification of the Constitution there were many concerns among the populace about limiting the power of government, federal and state, in any alleged criminal matter. It was Madison who penned the 5th Amendment which "binds down" the government to protect the people against it and guarantees indictment by grand jury, proscribes double jeopardy, and prevents government from compelling the citizen from being a witness against himself. All Miranda does is make sure that when an alleged criminal is under arrest, he clearly knows he has a right to remain silent in exercise of his ancient right against self-incrimination. You don't want to throw out the 5th Amendment I'm sure. I don't see informing an alleged criminal of his clear constitutional right not to self-incriminate as imposing an undue burden on the government and I can think of no reason for the guarantees of the 5th Amendment if not to restrain the government against the rights of the accused.

>You might disagree with me - but your disagreement is baseless. Sure - there are possible occassions where someone's rights can be increased without decreasing others . . . but I await a few examples.

As clear from the history of the Bill of Rights, and indeed, starting before the Declaration of Independence, our forefathers didn't see our rights as a zero sum game in which when someone got a right it came at the expense of another. They believed we had unalienable rights due to our existence as persons and flowing naturally from our creator, whether god or nature (remember Jefferson was a deist, unconcerned about how any man's conscience led him to consider his creator). We could get together to form a government and invest it with certain just and limited powers, but it was a creation of the people, by the people and for the people, not the other way around. Government, on the other hand, was not to be trusted nor were the people in it, hence the Bill or Rights started us down the trail of keeping government at bay. There is no other fair interpretation of the historical record and there are plenty of quotes above to demonstrate the Founders' clear point of view on limiting the government.

>...note that these are Amendments to the Constitution .... and the Constitution should be revised by the process called for in the Constitution rather than relying on unelected/unaccountable judges to "determine" (based on their own feelings and sense of importance, and perhaps - arrogance.)

Please read the 9th Amendment and Madison on the role of judges in vouchsafing our rights, as quoted above. They make a case I don't believe you have refuted.

Don't trust government to do the right thing for by nature it seeks to extend its power over us. More precisely, the people in it do. Depend on the Constitution and a people aware of and jealous of their uncounted rights to keep us free in our thoughts and actions and enjoy the creation by our Founders of a system of independent judges in a co-equal branch to help guard those liberties. (See Madison.)

And remember, a government that can tell Lawrence what to do and not do in his bedroom, even if you agree with it, can tell you too.

My $.02.

Best wishes, Mike, and thanks for the exchange. If you reply I'll be happy to as well.

[MHGinTN]

You wrote in a previous post, "I understand that abortion terminates what would otherwise become an undisputed human life ..." Sachem

I, for one, will not allow you (a professed liberal, which means to me that you assume an amoral stance and consider any issue from a situational and/or transactional perspective) to frame the life of the individual you would call a fetus as soemthing that will become an undisputed human being. Your tricky wording ignores such situational ethicists as Peter Singer and completely eliminates the issues to be faced with embryonic stem cell exploitation and cloning.

If you are being truthful, and you indeed have such medical credentials as you claim, you are well aware that the Science of Embryology predicates the functional studies upon the axiom that individual life begins at conception. You would also be aware of the first organ the newly conceived individual human mammal builds as the placental enclosure, an organ that is cast off at birth but which organ functions to bring nourishment and exchange oxygen and carbon dioxide while protecting the alive individual being from tissue rejection by the woman's body.

I would remind you that genetic tests done upon embryos predicate their efficacy upon the unbroken continuum of individual life ... they rightly assume that the embryo being tested for genetic markers is indeed the same individual human life that will emerge from its placental protection in several months, else the tests would be of little value.

I'm afraid your liberal perspective is far from even utilitarian if our society is to protect individual LIFE as primary before liberty and the pursuit of happiness.

As cloning science develops somewhere in the world, the ability to conceive and sustain individual life completely outside of a human host body will become a reality. If the embryo is not an individual, there is nothing in the intervening months following conception that a liberal such as yourself could point to in order to convey personhood upon the artificially sustained individual life ... and perhaps that's what liberals like yourself are reaching for.

You will not dehumanize embryonic individual human life in discussions at FR without stern opposition to your transactional value system ... we have discussed and considered the vagaries of such situational/transactional dehumanization and found such dehumanization very wanting. You will find there are many here who will not 'agree to disagree' when individual human life is in the balance. I am but one of many and not even one of the more forceful debaters on this subject. In their absence, however, I will vigorously oppose your dehumanizing liberal musings.

[MHGinTN]

Ping-a-ling

[E.G.C.]

BTTT!!!!!!!

[Sachem]

Thank you. Folks have been courteous to me and have taken the trouble to explain themselves thoroughly. I have things to read and a better understanding of conservative concerns about judicial activism. I see interesections of points of view and differences. Fair enough, it's a free country, starting with freedom of conscience.

You bring up the proper division of governing between states and the federal government, and I agree that we are given the tools with elections and the ballot box to choose state legislatures that represent us faithfully. Still, you might agree, that our system for choosing legislators can be taken advantage of by monied interests and voting blocs, among other means. Striking the right balance between responsiveness to those who voted you in and the interests of all the people is an old challenge to representatives, often more honored in the breech than the practice. This cuts for and against conservatives or liberals depending on where the "pendulum" has swung this year. I would like to see less money in campaigns but it is a tricky business to do that constitutionally.

I understand the 10th Amendment but I agree with Jefferson that states are no less to be bound down in their powers and with Madison that they are as inclined to go too far in their legislating as is the federal government. Permit this lengthy quote:

"I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, "No state shall pass any bill of attainder, ex post facto law, &c." were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against."

States are not angels and the general government the devil as both are to be monitored by a suspicious people.

I don't know, off the top of my head, enough to comment comprehensively on some of the specifics you have raised objections to. As for the will of the majority, I can fairly say, in a general way that is consistent with the Founders, that there are certain questions rightly beyond the reach of the majority. Among these are the rights secured in the Bill of Rights. Madison also said this instructive idea:

"The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority."

Let's talk again. Perhaps I'll dare some contrary opinions in other threads. This one has certainly been rewarding.

[SpookBrat]

Thanks for the ping. This will be a fascinating read. I appreciate you letting me know.

[mrsmith]

Further, it is precisely because Madison spends time on the question of the danger of enumerating some rights to be secured against [Federal government] usurpation that others not enumerated might be disparaged by the [Federal government], and because he takes the trouble to write what is now the 9th Amendment, that I rest my case about Madison and the supporters of the Bill of Rights having a far more expansive view of the peoples' rights [vis a vis the Federal government] than merely those listed in the Bill of Rights.

I think pointing out how grossly you are misinterpreting Madison's remarks is the best help I can give you to understanding my point.

Also, the Ninth refers not just to the Bill of Rights but to all the Constitution. This was because rights, Habeas corpus etc, had been secured in the body of the Constitution and the anti-federalists rightly pointed out that the listing of those few rights had already negated the Federalist's argument that no Bill of Rights was needed!

Any attempt to standardize the rights recognized by the various states would have doomed the Constitution.
Could the blue laws of Massachusetts be forced by the feds upon Virginia- or denied by the feds to the people of Massachusetts?
According to the Federalists the feds did not have the power to do so.
But, could they do so by construction of the powers they did have?
The Ninth puts a limit on that construction. Without the Ninth there is only the political influences upon the legislature [and nowadays the court LOL!] to prevent it.

BTW: Don't you find it at all ironic (even Orwellian) that you are arguing that the Ninth authorizes the federal government to take these rights into their hands?

[rhema]

If you [Sachem] are being truthful, and you indeed have such medical credentials as you claim, you are well aware that the Science of Embryology predicates the functional studies upon the axiom that individual life begins at conception.

The medical community wouldn't balk at that assertion, Marvin, as this now-decades-old testimony (published previously on FR, I'm sure) indicates:

* In 1981 (April 23-24) a Senate Judiciary Subcommittee held hearings on the question: When does human life begin? Appearing to speak on behalf of the scientific community was a group of internationally known geneticists and biologists who had the same story to tell, namely, that human life begins at conception - and they told their story with a profound absence of opposing testimony. In fact, 56 of 57 experts testified that human life begins at conception; the one dissenter didn't disagree on medical/scientific grounds, but on philosophical ones.

*Dr. Micheline M. Mathews-Roth, Harvard Medical School, gave confirming testimony, supported by references from over 20 embryology and other medical textbooks that human life began at conception.

* "Father of Modern Genetics" Dr. Jerome Lejeune told the lawmakers: "To accept the fact that after fertilization has taken place a new human has come into being is no longer a matter of taste or opinion ... it is plain experimental evidence."

* Dr. Hymie Gordon, Chairman, Department of Genetics at the Mayo Clinic, added: "By all the criteria of modern molecular biology, life is present from the moment of conception."

* Dr. McCarthy de Mere, medical doctor and law professor, University of Tennessee, testified: "The exact moment of the beginning of personhood and of the human body is at the moment of conception."

* Dr. Alfred Bongiovanni, University of Pennsylvania School of Medicine, concluded, "I am no more prepared to say that these early stages represent an incomplete human being than I would be to say that the child prior to the dramatic effects of puberty ... is not a human being."

* Dr. Richard V. Jaynes: "To say that the beginning of human life cannot be determined scientifically is utterly ridiculous."

* Dr. Landrum Shettles, sometimes called the "Father of In Vitro Fertilization" notes, "Conception confers life and makes that life one of a kind." And on the Supreme Court ruling _Roe v. Wade_, "To deny a truth [about when life begins] should not be made a basis for legalizing abortion."

*Professor Eugene Diamond: "...either the justices were fed a backwoods biology or they were pretending ignorance about a scientific certainty."

[ought-six]

"I'm a liberal Democrat alright. I just have lots of respect and appreciation for the Founders and the Constitution. Many of us do."

Then I have a question for you: Do you believe that the 2d Amendment protects the individual's right to keep and bear arms, or do you believe that it is not an individual right but rather a collective right permitting the State to have a militia, in which case only the state (i.e., a state body or agency) can be armed?

[Dan from Michigan]

2. Apparently conservatives object to liberal judicial activism. Is there such a thing as conservative judicial activism?

Judicial activism to me is making laws that are not specifically in the constitution, either by overturning them or creating new ones. "Conservative" judicial activism can exist is some areas. For example, the feds overturning a state drug law in the courts is judicial activism against the 10th Amendment.

3. How would decisions be different with conservative judges on the bench?

If they are good ones, I'd have anything against the bill of rights or against original intent be tossed. For example, the gun laws.

4. What decisions would conservative judges or justices roll back - overturn?

Roe V Wade should be overturned. Abortion is a state issue by the 10th amendment.
The latest overturning of the sodomy laws should be a 10th amendment issue as well, and I'm personally opposed to them myself.
The Patriot Act is against the 4th amendment, and there's juristiction problems there as well.
All gun laws should be overturned, state(2nd and 14th amendemnts) and federal(2nd)

[Sachem]

MHG, I respect your right to your opinions and I know it is shared by many millions. Any number of millions also disagree.

If there is a transcendent right guaranteed to Americans it is freedom of conscience. I can quote chapter and verse. I am jealous of my right to think and believe as I choose and wary of anyone, individually or collectively, denigrating or disparaging that right. Under our system of government, whatever the situation in heaven, your conscience is not superior to mine. I happily grant you the same felicity in reverse.

Stating that science teaches that an individual is created at conception is not helpful in the matter of determining who or what is a person, in my view. Who or what is a person is a concept, not a scientific question. For example, it might be helpful to ask science what it has to say regarding when we are mature enough to be responsible but science cannot finally decide who is an adult. That question, too, is a matter for human reflection.

I am aware of the passions inflamed regarding abortion. The fires run both directions. I'm commited to reducing the want of abortion, a sad business, through teaching people to make better choices about their sexual expression.

As for the restricted right to seek an abortion being the result of judicial activism I believe I have amply described why I disagree and offered not only my opinions but those of our forefathers on the vast extent of our liberties, particularly those not subject to the will of the majority or the desires of the government.

For better or worse, in this country we are not just free to choose to do the right thing, as some may be given the light to see what is right, we are free to do the wrong thing as well, guided only by our own conscience and tempered only by our not trammelling the equal rights of another.

It is necessarily left to our judges to decide when competing rights are professed. Fine with me.

Peace, my fellow free American.

[Sachem]

Hi, ought-six, I'm a .257 Roberts Improved (P.O. Ackley) man. Since I was young, I don't shoot anymore but come from a long line of ethical sportsmen.

>Do you believe that the 2d Amendment protects the individual's right to keep and bear arms, or do you believe that it is not an individual right but rather a collective right permitting the State to have a militia, in which case only the state (i.e., a state body or agency) can be armed?

The history of the Bill of Rights makes it clear that it is an individual right with a collective purpose. Madison originally said: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country..."

I do think that no right is absolute since it has the possibility of infringing the equal rights of another and I think the "well-regulated" part also means the government can have some limited say over the nature of the arms. Government might decide to outlaw sawed-off shotguns, or exploding bullets, or it might not, and proscribe RPGs, or Stingers, for example. Where to draw that line will be the subject of debate for a long time to come and I have no problem with that.

Lots of liberals feel the way I do. We're hardly a monolithic bunch.

[SpookBrat]

I'll bet there isn't a single other constitutional right that you would ever describe as "ugly" or would ever suggest should only be exercised "rarely."

Excellent thought.

Bump and ping.

[SpookBrat]

Thank you for your articulate, polite responses. I wish you best of luck. Besides my grandpa, you are the most polite Democrat I've ever met. LOL I'm thinking you are either sincere, or you are trying especially hard to stay out of trouble here. I'm anxious to discuss some things with you. I don't suppose you'll be changing over to the pro-life side any time soon, but perhaps you could be persuaded. Or at least I can give you some things to think about.

Be Back in a bit.

[Sachem]

Thanks, Dan for your suggestions about what might be different with conservative judges.

>Judicial activism to me is making laws that are not specifically in the constitution, either by overturning them or creating new ones.

I've read this whole thread at least twice and I'm going to read it again. Might I impose on you to do so as well, because I've tried to make a case with a 200+ year foundation regarding our virtually limitless rights, certainly the importance of our unenumerated rights.

At the risk of turning this into a states rights thread, interesting but not the primary topic, how do you decide what is the business of the states to legislate and not that of the general government? What would you say about the vote for women or segregation and on what principle are those questions assigned to the states or the federal government?

[Sachem]

Thank you, Spook.

I'm sincere but also mindful I'm a suspicious guest with unclear intentions so I'm certainly trying to stay out of trouble. At the same time I'm thoroughly tired of reading name-calling contests whenever folks of opposite minds draw together. I came with an honest heart and I've learned more here in a day of mutual civility then I ever could in a flame war. Besides, I spent a lot of time in Sunday School as a kid so if I get too far out of line I feel guilty ;-)

Please bring up whatever you would like to discuss. Warning: I might be civil but I'm liberal.

I'd be happy to hear what you have to say on the pro-life side and will do the hard work of thinking about it.

[betty boop]

Welcome to FreeRepublic, sachem!

If you don’t mind, I’ll answer your questions in the order you pose them:

1. If I disagree with any of the viewpoints can I discuss, debate or argue if I’m civil?

Absolutely!

2. Apparently conservatives object to liberal judicial activism. Is there such a thing as conservative judicial activism?

It’s possible. The point is it doesn’t matter whether it’s done by a liberal or a conservative; judicial activism is inherently a usurpation of the constitutional powers of Congress and, as such, an unconstitutional expansion of the role of the Courts under our foundational law. This is clear on a fair-minded reading of what the Framers intended in the language of the Constitution, Article III:

“The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority….”

The judicial power is subordinate to the Power of Congress in all regards save that the Constitution itself creates the Supreme Court, and the Executive appoints federal judges and justices of the Supreme Court (but even judicial appointments are subject to the “advice and consent” of the Senate).

The bicameral Congress is the body of popular representation – representation of the whole people, elected by them out of their respective states, and directly accountable to them. Congress is the only branch of government on which the Constitution confers the law-making function.

The judicial power extends to trying cases in law and equity arising under the Constitution, and the statutes that Congress passes. Period. Judges and justices have no power to “make law.” They are charged solely with interpreting it to see whether it passes muster with the clear requirements of the Constitution; and statutory law as enacted by Congress, and put into effect under the President’s signature.

Now, an activist Court (such as we arguably have now) will tell you “de jure” that they’re “only” interpreting the Constitution, even though “de facto” -- effectively -- they are making new law.

Three cases in point: Roe, the University of Michigan "affirmative action" case, and the recent Texas sodomy law case. As luck would have it, these are extraordinarily controversial cases. But it really doesn’t matter where one’s “opinion” lies with respect to any of them. What is clear is that Congress has never created any statute respecting the “right” to an abortion, or “gay rights.” And "affirmastive action" appears to be contradictory to the foundational principle of American legal equity, which is "equal protection under the law," not special privileges for some....

That being the case, the SCOTUS clearly went beyond their mandate of trying cases arising under the Constitution or statutory law. Both the Constitution and federal statutory law are completely silent on abortion and gay rights. Technically, there’s nothing for the Justices of the Supreme Court to do here, but bump such cases back to the States, where legitimate state statutory laws may exist expressing the will of the people of the respective states with respect to those questions.

Before leaving this question, may I point out that the only body in the United States of America which is constitutionally authorized to change the Constitution is the Whole People, acting in concert according to the provisions of Article V (The Amendment Process). No Supreme Court justice may modify our foundational law; no member of Congress may do so. All of these federal officers swear (or affirm) Oaths of Office that, in effect, state they will not do this! Those Oaths bind these officers to the duties imposed on them by the People, acting through the Constitution.

3. How would decisions be different with conservative judges on the bench?

Hopefully, conservative justices would be constitutionalist justices. Which means that they would not look beyond the federal Constitution for the rationale of their judgments/decisions. Hopefully, they would also be sensitive to the reasoning and intentions of the people who wrote the Constitution, or created the statutory law.

I was positively horrified to hear Justice O’Connor say, in a recent interview (to paraphrase), “she doesn’t need to consult the legislative history of a statute if the meaning of its text is clear to her.” Which means that as a sitting justice on the Court, her own interpretation of a passage of text trumps the congressional deliberative debate and exhaustive explanation of what Congress thought the law means, and what they were trying to accomplish by enacting it! To me, this is “jurisprudential deconstructionism,” where the author’s purpose in writing a text is considered completely irrelevant to its interpretation and comprehension. The Constitution simply can’t survive under such a jurisprudential doctrine; for this is to ignore the very thing that gives the Constitution its meaning and its integrity (i.e., the reasoning and intentions of the Framers and legislators).

4. What decisions would conservative … justices roll back -- overturn?

The controversial ones, sachem (see above). Congress can act to create by statute what the Court has no competence to decide. Otherwise, state laws (all 50 of them, and all presumably different) would hold respecting these issues.

Then again, that failing, the Whole People (or at least an active minority of it) could agitate for a Constitutional amendment, thus to make “pro-choice,” gay rights, and group-based law (rather that individual civil rights) “the law of the land.”

But frankly, I consider that a long shot – a very long shot. My guess is that unqualified enthusiam for such issue positions is confined to a pretty narrow sector of the populace. But that could change – over time….

Never forget: The Constitution not only preserves equal justice under law, but also the American way of life. Though it provides for ways of modification (Article V only!) to adapt to changing circumstances, it is biased in its heart towards conserving what is already there; e.g., the accustomed habits, mores, and values of the American people.

[Alberta's Child]

It is necessarily left to our judges to decide when competing rights are professed.

So if the U.S. Supreme Court decided tomorrow that black people are no longer considered "people" and therefore do not enjoy the protection of their constitutional rights, on what grounds could you possibly object to the decision?