Activist Judges

[BCrago66]

Coorection: The basic point here is that activist judges - more often than not - give us less liberty than is guaranteed by the Constituion - not more.

[colorado tanker]

Yes, but judges can't just decide one day to change a law they don't like

That's exactly what the Court did in the gay rights case, overturing 200+ years of practice under the Constitution and the Court's own 17 year old precedent. The goofy thing is the Court didn't need to make up new law here because legislatures were adopting the same policy without judicial coercion in decriminalizing sodomy.

However, the legislatures are the mere creation and convenience of the people

Well, yeah, and that's a good thing. That's the democratic feature of our Republic.

Courts should show even more deference to citizens than their governments, however near the grass roots the governmental entity

Courts cannot show "deference" to citizens by ignoring the policies enacted by their elected representatives.

In our system, praise be the Founders, our legislatures are limited in their powers to limit our rights, our freedoms

We agree. My caveat is that the due process clause prohibition agains deprivation of liberty without due process of law is not a license to strike down any law the justices don't like. That kind of substantive versus procedural due process is what both conservative and liberal judicial activists historically use to substitute their own public policy for that adopted by the legislature.

The law of unintended consequences applies here too. I submit an important reason why public respect for the courts has been declining is because of activism. If judges are going to ignore the law and act like a superlegislature, they will get the same respect other politicians get.

The extreme partisianship in the Senate is another consequence. Judges used to be reviewed for eminent legal qualifications. Now that the Court is making policy, judicial appointments are bitterly fought by the partisans who want their policy, e.g. legalized abortion, adopted. Senate elections are now proxy elections for the Supreme Court, our superlegislature, in the same way elections to state legislatures were proxy elections for Senator in the days before direct election.

This is not a good thing for our Republic. Suppose the day comes, far into the future, when Democrats return to power. Would you feel the same way about a conservative activist Court striking down, say, environmental legislation on the grounds that land use restrictions infringe the owners "liberty," or that a gun registration law infringes the owner's "liberty," or that denying a tax deduction to a "rich" person violates their right to equal protection. You see, activism can hit both sides and it seems to me the Democrats and Libertarians who love activism today don't understand that the pendulum can swing back and allow conservative activists to strike down liberal legislation.

[KC Burke]

A very good book explaining traditional American views of judical justice and the harm of judical activism by either side is Robert Bork's The Tempting of America. Written over a decade ago, at the conclusion of his failed nomination to the court, this book shows the brilliant mind that was kept off the court and explains why that was critical to leftist utopians and demogogues partial to Rationalist Totalitarian Democracy. A sample of his comments from that book and elsewhere would include:

In a constitutional democracy the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge.

************

When a judge goes beyond [his proper function] and reads entirely new values into the Constitution, values the framers and ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the process of democracy.

****************

The judge's authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or their representatives voted for.

Was Judicial Activism correct when judges influenced by southern appointment decieded Dred Scott? Bork maintains they weren't. But then again neither are they in the last fifty years when the trend has been to interprete Animating Documents' vauge intentions or sentiments rather than following the Original Understanding of the writers and ratifiers of the Constitution, our Founding Document, which clearly outlines our limited Federal government.

The process of amendment was included and can be used but Rationalists don't want to endure their defeat in the process because they consider their vision of our needed course superior to the founding and the actual will of the citizenry.

As far as legislators being the mere creation and convienience of the people, what else is representative government but such functionaries? Surely you don't wish for the Philosopher Kings of Plato, the constant reference to rationalist sentiments Libertie, Fraternity, Equality without structure, custom or law as practiced in the Terror; or likewise the rule by Judges?

No, we conservatives wish simply for the Protection from Arbitrary Power envisioned by the founders in the Seperation of Powers laid down by the Founding Document: our Constitution.

[Sachem]

Oh, that's impressive. Okay, I don't know the facts. I will try to inform myself. Sounds like the court blew it. Are your supreme court justices elected? What recourse do you have in Nevada if they go into the ditch?

[KC Burke]

What recourse do you have in Nevada if they go into the ditch?

Impeachment, the same recourse that can be used now at the Federal level if we have the stomach for it.

[rhema]

Since no one has yet praised your lucid exposition (post #11) of one of the quintessential manifestations of judicial activism -- Roe v. Wade -- let me be the first do do so.

The two citations that follow also help explain just how constitutionally misbegotten that landmark case of judicial activism was:

Harry Blackmun, RIP -- And May He Now Know Better

Roe v Wade at 25: Still Illegitimate [Note the comment by pro-choice legal scholar John Hart Ely: The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously, even to many scholars who heartily support the outcome of the case. As John Hart Ely, former dean of Stanford Law School and a supporter of abortion rights, has written, Roe "is not constitutional law and gives almost no sense of an obligation to try to be."]

[Alberta's Child]

The definition of "judicial activism" is actually quite simple: It describes a "legal" system in which judges essentially assume the responsibilities normally assigned to a legislative body, by rendering decisions that have absolutely no basis in Constitutional law. This process is generally used to pursue a political/economic/social agenda that is so bizarre and is so anathema to the traditional legal and moral foundations of the United States that it could never survive the legislative process. As a result, the definitions of a "normal" legal and moral basis for U.S. law become so perverted that there is no longer any rational foundation in our legal system.

The most telling sign of an "activist" legal decision these days is when the majority opinion uses nebulous, idiotic terms such as "the right to define one's own existence," which served as the root of several prominent Supreme Court cases over the last few years (including the Texas sodomy case).

[Sachem]

You make many interesting points but this one caught my eye:

>You can't "enlarge" one person's rights without stealing someone else's rights

If you've read anything I've written so far you will know I disagree with the premise here. There is nothing to be enlarged. It's my belief that the Founders recognized persons as possesing rights only limitable when they infringed the equal rights of another or when government could show a clear and compelling reason to take them away.

The American experiment is about individual liberty not government power.

[Sachem]

Yes, and that's why the Patriot Act goes too far, IMO.

[j.havenfarm]

You're most kind. Thanks, FRiend.

[Alberta's Child]

What is strict constructionism?

"Strict constructionism" means that the Constitution means exactly what the people who wrote it meant to say. Any application of that Constitution to modern issues that were not relevant back then (private ownership of modern military weapons, for example) can only be done through the amendment process.

[Lurking Libertarian]

What a liberal would call conservative activism from the Courts would more properly be defined as strict contructionism of the Constitution

There have been periods of time in the history of the U.S. when the Supreme Court was guilty of conservative activism, as in the "Lochner era" in the early 20th century when the Supreme Court invalidated state minimum wage laws on the theory that they were violations of "liberty of contract."

[Alberta's Child]

What recourse do you have in Nevada if they go into the ditch?

See Post #6 in this thread:

Click Here

[Centurion2000]

What is strict contructionism? There is nothing in the history of the Bill of Rights that says it is all encompassing of our rights.

Actually is covers ALL rights. Go read it.

Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Strict constructionism requires anything not SPECIFICALLY covered by the delegated powers, states rights and the rights of the people to be submitted to an amendment process.

Things that would have required amendments.

EVERY department of Education, Energy, other the FBI, CIA, EPA which were created after the Constitution

Roe versus Wade would have been laughed out of court ... as would the 1934 NFA and 1968 Gun Control Acts.

[Sachem]

I like the points you raise. Yours and many others are why we are still discussing this stuff 200 years later. I think it was intended that we do so as part of our requirement as citizens to know our system and guard against governmental usurpations.

>Courts cannot show "deference" to citizens by ignoring the policies enacted by their elected representatives.

What I have in mind is that the courts must let stand any law passed by a legislature unless it has constitutional defect - and some do. The deference to the individual part just means that in a dispute, a legal case, where a citizen asserts his liberty is being infringed by a legislature's law, the citizen's argument against the taking of his liberty must be havily weighed.

We don't want our republic, our representative democracy, to be a mobocracy, a tyranny of the majority.

I understand some of your concerns about respect for the courts. I might formulate the diagnosis and prescription somewhat differently.

I think people should expect their judges to be as impartial and non-political as possible. Politicians have sought out judges willing to see their political philosophies suffusing their decisinos. While some of this is unavoidable, we are all human and biased, too much predictability breeds cynicism and mistrust. I like judges whose decisions are refreshingly fuonded in the law, and who surprise us by ruling impartially when we thought we knew there politics well enough to write the script beforehand.

I see no signs that either party is ready to give up affecting the philosophical complexion of the Supreme Court, but I note, with interest, that Clinton's choices came from a list supplied by Orrin Hatch that were intended to be center-left, hence attractive to a liberal administration, but not so far out as to be unacceptable to conservatives.

[Sachem]

There are examples above of language in the constitution that is not clear. Further, there was hardly agreement in everyone's mind at the time of ratification of what every jot and tiddle meant.

I think "strict constructionism" falls down the minute a real case is brought forward in which there is a dispute over contending rights and interests.

>Any application of that Constitution to modern issues that were not relevant back then (private ownership of modern military weapons, for example) can only be done through the amendment process.

As I see it governments at various levels have some power to restrict the keeping and bearing of arms. Thus, while governments couldn't restrict owning a rifle and ammunition, they could restrict possessing a .50 caliber Browning machine gun and its ammunition, no amendment required, for example.

Our rights aren't absolute. We have the right to our own life, but under certain due process circumstances the government can take it. If it is fair for the government to restrict "free" speech why not fair to regulate some aspects of firearms ownership, or any other right in the Bill of Rights so long as the curtailment of liberty is for good enough reasons and not prohibited?

[Sachem]

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

You might be able to stomach some of what I am writing here but you would gag if we got onto politics and policies, I suspect.

Then again, maybe we could trade a few ideas and draw a little closer. Nah ;-)

Anyway, thanks for responding.

[Busywhiskers]

Judicial activism occurs whenever a judge, with a desired legal result in mind, seeks to achieve that result through his interpretation of "the law" regardless of what the law really actually says. In doing so, the judge violates the separation of powers by taking on the function of the legislature.

Examples.

Roe v. Wade-Found a so called right to abortion in the constitution and overturned statutes enacted by 49 state legislatures.

Federal courts have uniformly ignored the 10th amendment.

9th Circuit ruled that there is no individual right to keep and bear arms. The ruling was originally based in part on a book on gun ownership that was subsequently unmasked as a notorious example of an academic fraud.

The Florida Supreme Court tried to substantially rewrite Florida election law in violation of the US Constitution.

In the recent USSC decision in the Michigan affirmative action case the court ignored the equal protection clause of the 14th amendment and substituted "a compelling interest" to encourage diversity.

In the recent Texas sodomy case, the USSC overturned statutes enacted by 7 or 8 state legislatures. According to Justice Scalia, "This [opinion] effectively decrees the end of all morals legislation".

One of the most recent and egregious examples is the Nevada SC decision last week.

Can conservative judges be activist? In theory. One of the distiguishing characteristics between liberals and conservatives is that conservatives tend to have more respect for the rule of law. When Richard Nixon was shown to be a the scoundral that he was, Republican congressional leaders went to the Whitehouse and told him to resign. When Bill Clinton was shown to be a lying scoundral, the Democrat leaders went to the White House and held a rally in his support.

[Budge]

Thanks for replying, Sachem, and please forgive my taardiness in my reply (it has been a VERY long day).

I'm certain I won't be able to counter all your examples, but will try a couple.

Freedom of speech - sound truck at 3 AM...Societal standards. Limits placed upon one, is equally applied to the other - no exceptions.

Yelling "fire" ... Would it be safe to do so?
No. But that common sense law applies to all, not just a specific group.

From the 6th, what is a "speedy" trial?

Would you consider it proper to hold a suspect in jail for five years before his/her trial? What if the person held is actually innocent?

By the same token, would you consider it 'reasonable' to hold a trial the day after a person is arrested if he is suspected of murder? By the same token, what if that person is actually guilty?

Back to freedom of speech - every person has the right to speak. Where is it written that the person speaking must be listend to?

I apologizeif these are not the answers you were looking for, or probably even expected. But as I mentioned, this has been a very long day and my brain is probably chugging along at .002 MPH. :)

[colorado tanker]

What I have in mind is that the courts must let stand any law passed by a legislature unless it has constitutional defect - and some do. The deference to the individual part just means that in a dispute, a legal case, where a citizen asserts his liberty is being infringed by a legislature's law, the citizen's argument against the taking of his liberty must be havily weighed. We don't want our republic, our representative democracy, to be a mobocracy, a tyranny of the majority.

Agreed.

I think people should expect their judges to be as impartial and non-political as possible

Again, agreed.

I see no signs that either party is ready to give up affecting the philosophical complexion of the Supreme Court, but I note, with interest, that Clinton's choices came from a list supplied by Orrin Hatch that were intended to be center-left, hence attractive to a liberal administration, but not so far out as to be unacceptable to conservatives.

That sounds a bit like Daschle and Leahy's demand to vet Bush's appointments, which Bush rightly refused. They would not be reasonable as Hatch was with Bush. Many pro-abortion judges were confirmed by the Senate on Hatch's watch. Under no circumstances, however, would Daschle allow a pro-life appointment to the Supreme Court without a filibuster.

Both sides have their euphemisms, but we know this fight over judges is over Roe. If Roe is overruled, the decision whether or not to regulate abortion returns to the legislatures, where the Constitution put it in the first place. The main constituencies of the Democratic Party will do everything in their power, including character assasination of nominees, to stop that from happening. Senate Democrats know they must toe the line on this issue because it is a party loyalty litmus test. So, they will not extend Bush the same courtesy Clinton recieved of appointing judges reflecting his views on the subject. Roe has completely politicized the nomination process.