Posted on 07/15/2003 2:56:08 PM PDT by Sachem
I'm a liberal Democrat and aware that conservatives oppose "activist judges legislating from the bench." I'm not clear what that means or even if it's the best terminology and would like conservatives to explain their concerns so I can understand them. Examples, principles and philosophical underpinnings would be helpful. References to the Constitution and amendments as well as specific cases would be helpful.
I understand this is a privately owned board and among its purposes is to provide a place for conservatives to talk with conservatives and that its operators can place any restrictions on posters they like. I'm not a "rat troll" or a disruptor. I'd like to understand the conservative point of view on judicial activism.
In addition to the general request for information on activism from the bench, above, I would like to know:
1. If I disagree with any of the viewpoints can I discuss, debate or argue if I'm civil?
2. Apparently conservatives object to liberal judicial activism. Is there such a thing as conservative judicial activism?
3. How would decisions be different with conservative judges on the bench?
4. What decisions would conservative judges or justices roll back - overturn?
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.
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.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.************
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.
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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.
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.
Impeachment, the same recourse that can be used now at the Federal level if we have the stomach for it.
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."]
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).
"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.
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."
See Post #6 in this thread:
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.
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. :)
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.
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