Activist Judges

[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?

[Sachem]

I appreciate this thoughtful post.

I take issue with both your facts and interpretation on Roe.

Let me state, to begin with, I'm a pro-choice liberal. But just in case it might matter, I'll also say that I don't like abortion or anything about it. I mean it when I sign onto the notion that it should be safe legal and rare. I strongly support the notion, from Roe, that after viability, the ability of the developing baby to sustain, even with assistance, meaningful life outside the womb, means it is one breath away from personhood, and no longer subject to the mother's choice save in extreme cases. I understand and oppose partial birth abortion at the same time I confirm the woman's right to choose abortion in the first trimester, with the waters muddy in the second and only rare and extraordinary justification in the last.

If you read my other posts, I don't think the justices in Roe made up any rights. We don't get our rights from government. We don't get our rights from the Constitution. Both these organs help vouchsafe them.

That people have a right to privacy that includes their reproductive choices seems right as rain to me. It is only a convenience that you can find justification for these rights or any others in the constitution. Anyone with doubts is advised to please re-read the 9th Amendment and ponder its inclusion, and especially, to spend a few nights on the history of the Bill of Rights.

Since in abortion two lives are involved, somebody had to decide whether both were equal as persons, or not. If you have read Roe, and not just legal commentary, you will know that the origins of attitudes and laws about abortion in our history were carefuly taken into account. The ability to decide whether a developing baby was human life or potential human life was considered by examining law, scripture and tradition. Since clerics, philosophers and lawyers disagree, the judges had to decide.

You would like this to have taken place at the state level. I can see that. 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. I am tolerant of the fact that some states have capital punishment while others do not. I would not be tolerant of some states having slavery, some segregation, some suffrage for women, some restricted abortion rights, and some not. It is a choice based on judgment. I accept other points of view, and there are plenty.

You know, by now, that I believe Madison would have never accepted your "minting new-found rights" formulation when he wrote the original of the Bill of Rights.

As a final note, I think that some of the concern by liberals regarding conservative justices sending abortion back to the states is overdrawn hysteria. Roe is not Dred Scott. It is unlikely to now be reversed after having been relied on for so many years.

Thank you for a thoughtful response.

For anyone who has not, may I gently suggest actually reading Roe v. Wade to see the background of the ruling.

[Sachem]

Excellent specifics. I am conversant with a few and want to comment.

Apologies, but I'm running off to an appointment but will be back late.

[maxplunder]

Welcome to FreeRepublic FRiend. I appreciate your civility.

In your reading of the "History of the Constitution and Bill of Rights" did you think to contemplate Who's history you were reading.

Also you can go back one more historical document for some more refrence, The Declaration of Independance. It states that everyone has the right to Life, Liberty and the Persuit of Happiness. Also That to secure these Rights, Governments are instituted among Men, deriving their Powers from the Consent of the Governed

We also have the power to end such goverment if it becomes destructive to the people.

Judicial Activisim, I believe, is comming very close to infringing upon the rights of the people. When people lose their rights so that others can gain even more rights, that's well.... not right.

[Kay Ludlow]

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

I agree. That was actually the subject of considerable discussion here on Free Republic. While many believe the restrictions on liberty are necessary in the short term and will be repealed when not needed, I don't really trust government that far. The Patriot Act gives powers to Law Enforcement that they've been asking for half the last century! Doesn't mean they need them, or that they'll do a thing to stop terrorism...

[KC Burke]

I will add to my comments at #63 and #65 what Thomas Sowell writes in The Quest for Cosmic Justice (page 167), his followup volume to The Vision of the Annointed and A Conflict of Visions, all of which I highly recommend as a collection of reasoned views of our basic differences.

Judicial Activism

The role of judges is of course crucial in the law -- and especially to maintaining the rule of law, as distinguished from a system of arbitrary edicts from those who hold power. Here again, the traditional concept of justice leads to a wholly different role for judges than their role as seen by those pusuing a quest for cosmic justice.

The traditional conception of the role of judges was expressed thousands of years ago by Aristotle, who said that a judge should "be allowed to decide as few things as possible." His discretion should be limited to "such points as the lawgiver has not already defined for him." Moreover, the law itself must be the application of rules to be used for the guidance of others besides litigants, bor its decisions are "not particular but prospective and general." By contrast, the NY Times columnist and legal writer Anthony Lewis prased SC Court Justice Harry Blackmum because Blackmum "focused the most on the actual people whose lives were touched by the cases"--in other words, the litigants before him and perhaps a similarly circumstanced segment of society. But those affected by Supreme Court decisions include all those who are affected by the stability, reliability, and just application of laws--and that means everyone in the whole society, not just the litigants and those like the litigants. If the claim is implied that Blackmum took account of all the ramifications of his decisions on all others affected beyond the courtroom, then this is claiming what no judge of any other human being can ever do.

A judge cannot "do justice" directly in cases before him. This view was strongly express in a small episode in the life of Justice Oliver Wendell Holmes [hardly, a conservative points out KC Burke] After having lunch with Justice Learned Hand, Holmes entered his carriage to be driven away, as he left, Justice Hand's parting salute was:
"Do justice, sir, do justice."

Holmes ordered the carriage stopped.

"That is not my job," Holmes said to Justice Hand. "It is my job to apply the law."

Elsewhere, Holmes wrote that his primary responsibility as a judge was "to see that the game is played according to the rules whether I like them or not." In one of his Supreme Court decisions, Holmes said, "When we know what the source of the law has said it shall be, our authority is at an end." Another Supreme Court decision by Holmes ended, "I am not at liberty to consider the justice of the Act."

The case for upholding legal principles, know and relied upon by others, is precisely that it can be done, and done whiole preserving a free society, whereas laying cases by ear requires far more knowledge than anyone posseses and is incompatible with the rule of law and the freedom which depends on that rule. The specific virtues of particular laws or particular judicial interpretation of laws--their justice, compassion, equality, or adjustment to social realities, for example--are of course important. But the major part of the benefits of law comes from it being law as such, from its being a dependable framework within which millions of people may plan and act, whether or not the particular laws have other specific virtues. Thus Christians and Jews were able to prosper under the the dependable laws of the Ottoman Empire, even though those laws denied them equality and made them subordinate in many ways to Moslems. Ironically, economists have been discovering the enormous importance of the rule of law at about the same time as judges have been sacrificing the rule of law in attempts to make the law mor just, mor compassionate, equal or more in tune with the judges own perceptions of social realities.

The role of such concerns as justice and compassion are very different in legislation than in the later judicial interpretation of legislation. When ...Holmes said "I hate justice" as a legal consideration, he was not saying that justice does not belong in the law. He was saying that it was not the judge's function to put it there, that this was a legislative function. ... It might seem that if justice is something that is desirible in the law, then the question of who puts it there is secondary, if not trivial. On the contrary, however, the seperation of roles in creating law is crucial to the preservation of the rule of law itself.

Legislative enactments, presidential actions, and amendments tot the Constitution are all things which publically announce changes in the law of the land, providing foreknowledge of changes in the legal framework within which free people may plan and act. Moreover, all the processes are ultimately responsible to the people themselves and can be reversed if the peole find them onerous. Judge-made innovations are, in effect, expost facto laws, whare are expressly forbidden by the Constitution and abhorrent to the rule of law. For courts to strike like a bolt from the blue hitting an unsuspecting citizen, who was disobeying no law that he could have known beforehand, is the essence of judicial tyranny, however moral or just the judges may imagine their innovation to be. The harm is not limited to the particular damage this may do in a particular case, great as that may sometimes be, but makes all other laws into murky storm clouds, potential sources of other bolts from the blue, contrary to the whole notion of "a government of laws and not of men."

***

The quest for cosmic justice via the judiciary--law as an "agent of change", as it is often phrased--quietly repeals on the the foundations of the American revolution. It reduces a free people to a subject people, subject now to the edicts of unelected judges enforcing "evolving standards" and made more heedless by their exhalted sense of moral superiority. It is one of the most dangerous of many ways in which towering presumptions are a threat to the freedom of America.

Please excuse the poor typing and any typos, but in spite of your claim to be a "liberal" you are my countryman and a good understanding of the heritage of our nation is essential to us all.

Like many black conservatives, Sowell speaks with a clear voice, unafraid to lay claim to the freedom we offer the world by example.

[ought-six]

The "living constitution" is no constitution at all. If the document can be molded to fit any given situation at any given time, why even have a document to begin with? Just let the courts make up the rules as they go along, because that is EXACTLY what a "living constitution' does: what's legal or allowed one day is not legal or allowed the next, depending upon who decides how the constitution is living at the moment. Therein lies chaos, and the potential collapse of the republic.

[mrsmith]

"I believe Madison would have never accepted your "minting new-found rights" formulation when he wrote the original of the Bill of Rights. "

You need to learn a little of what Madison had to say about the Bill of Rights.

When he introduced what became the Ninth Amendment:
""...it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution (the Ninth Amendment)."
I Annals of Congress 439 (Gales and Seaton ed. 1834).

Yet liberal judicial activists like you argue just the opposite- that the rights would be more secure if they were in the hands of the federal government!

Fortunately, no judge has ever succeeded to construe the Ninth to give him such power.

The one requirement to be a believer in a living constitution is a lack of knowledge of the Ninth Amendment.

[Alberta's Child]

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.

Well, I've got news for you. Activist judges have exercised disgraceful abuses of their legal authority even in cases where the language of the constitution is clear. The U.S. Supreme Court ruling (in 1972, I think) that overturned every state capital punishment law was a perfect case in point. By determining that the death penalty amounted to "cruel and unusual punishment," the Supreme Court blatantly ignored the clear intent of the authors of the U.S. constitution. The 8th Amendment's prohibition against cruel and unusual punishment could not possibly have been intended to include the death penalty in general, since 1) almost every state at the time the Constitution was ratified had a capital punishment statute on its books, and 2) the 5th Amendment contains very specific language describing the method for trying capital crimes.

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.

On what constitutional grounds is a government permitted to restrict the possession of a machine gun?

If it is fair for the government to restrict "free" speech why not fair to regulate some aspects of firearms ownership . . .

The government is permitted to restrict free speech in cases where the "speech" itself represents an imminent (and deliberate) danger to others. The classic case involves the prohibition from yelling "Fire!" in a crowded theater when no fire exists. The government is not, however, permitted to curtail the rights of citizens just because these citizens might abuse them. For example, the government has no right to prohibit people from entering theaters just because some moron might yell "Fire!" in the middle of a movie when there is no fire.

[Alberta's Child]

I mean it when I sign onto the notion that it should be safe legal and rare.

Why "rare?"

[MHGinTN]

You wrote, "Let me state, to begin with, I'm a pro-choice liberal. But just in case it might matter, I'll also say that I don't like abortion or anything about it. I mean it when I sign onto the notion that it should be safe legal and rare. I strongly support the notion, from Roe, that after viability, the ability of the developing baby to sustain, even with assistance, meaningful life outside the womb, means it is one breath away from personhood, and no longer subject to the mother's choice save in extreme cases. I understand and oppose partial birth abortion at the same time I confirm the woman's right to choose abortion in the first trimester, with the waters muddy in the second and only rare and extraordinary justification in the last. Sachem"

Look at your assertions regarding the Roe 'trimester' framework. Would you still divide the baby as a thing a woman has a special right to hire killed if it were proven scientifically that even from first implantation she is pregnant with an individual human being, a fellow member already of the human race? ... I suspect you will immediately jump to denying that the pre-viability life is a human being, a full fellow member of the human race, for that is how liberals mollify conscience in order to grant the special right of hiring the killing done, the killing done mostly for expedience and convenience. Your words sound high and rational, but you've segmented the truth of the unborn in order to justify serial killing of individual human beings in our nation.

You individual human life began at your unique conception, whether in a petri dish or your mother's body. There is no validity to the specious claim that one human being is less than another based on age or location. The science of Embryology is the venue for truth regarding the preborn ... and the first axiom of that science is that lifetime begins at conception. If the embryo is conceived via human gametes (or in cloning a human gamete and human somatic cell nuclear transfer) the individual life is a human being from that point onward for the remainder of the lifetime so begun.

[Sachem]

To all, it is gratifying to read the many responses and honest efforts to reply to my queries and to clarify conservative thought and attitudes on this important issue of judicial activism. I will try to respond to several posters and in a number of other cases I will do some homework you have assigned: read some cases and ponder some passages from books. I appreciate the many explanations as well as references offered.

In response to MHG, I offer a few thoughts. Roe is mostly interesting to me in this context as a case in point regarding judicial activism. Nonetheless, I will briefly address abortion itself and try to tie it to the topic at hand. You won't like what I have to say, I imagine. Please know that I'm not Solomon but I've thought about this issue a lot.

> Would you still divide the baby as a thing a woman has a special right to hire killed if it were proven scientifically that even from first implantation she is pregnant with an individual human being, a fellow member already of the human race?

With respect, because I know this is an issue that tears at the heart of many good people, and I don't take it lightly, I don't accept that medical science can help us very much in deciding what is a human being. You happened to catch me in an area I know something about. Among other related pursuits, I'm a medical scientist and I got A's in vertebrate embryology, both lecture and laboratory sections. Can you be more specific about how you believe science illuminates the issue of whether "hiring killed" (a deliberately dreadful but accurate phrasing) a developing baby in its first months of life is taking the life of a human being?

You know of course, that I don't accept your definition of what is human life. Many do, many don't. Why leave it to government to decide what pastors, professors, lawyers, scientists, sons, daughters and all manner of other ordinary people cannot agree on? Is it not better to teach and preach your message, to persuade others of its rightness and its righteousness and to govern themselves accordingly, instead of compelling them with the government's boot on their neck to accept a belief they do not share?

>I suspect you will immediately jump to denying that the pre-viability life is a human being, a full fellow member of the human race, for that is how liberals mollify conscience in order to grant the special right of hiring the killing done, the killing done mostly for expedience and convenience.

Mmm, you're right about my thinking pre-viability life is not the same as being a full fellow member of the human race. You're wrong about this view mollifying my consience, which is too private and personal to describe here.

>...killing done mostly for expedience and convenience.

I think the evidence shows you are partly right and mostly wrong on this point. There is great variability among people and I do not doubt for a second that abortions are sought for unimaginably trivial reasons. Fie on such people. However, in the great majority of cases I believe the woman takes her pregnancy very seriously, agonizingly considering the whole of her circumstances including her ability to succesfully raise a child and the consequences of choosing to end her pregnancy with abortion. There is no calamity, no crisis, the equal of an unwanted pregnancy, filled as it is with religious, moral, and practical consequences, both immediate and life-long. A woman in such straits needs love and understanding, compassion and help in making the best choice for herself and her unborn baby. What she does not need is someone else making this most intensely personal decision for her. IMO and experience. I am tolerant but not persuaded of other views. I think the American people are shown in polls over several decades to favor a woman's right to choose in early pregnancy but are sensitive to the need for such restrictions as parental notification in the case of minors and strict controls on late term abortions. Me too.

Your last paragraph is perhaps the clarification of your views I asked for above. I understand in perfect detail what it means. I entirely disagree with your conclusion.

Peace, MHG. Let us work to make abortion go away by responsible choices by couples. Surely we can agree on that much. And remember the old adage, it is not incumbent upon us to complete the work, but to carry it on.

[lorrainer]

Bookmarking *applauds civil discourse*

[Sachem]

I see the same effort to make more and more laws that restrict us more and more. As a live-and-let-live liberal I don't like it.

You did mention an interesting list of items that government requires of us, however. I think our desire for a laissez faire existence is tempered by the requirements of a free yet reasonably orderly society. It is right that we argue about where to draw the line on regulations and restrictions on our freedom.

The things on your list have such a potential to affect or adversely affect others, however, that I'm for most of them. Marriage is a contract with social, societal and legal ramifications as regards children, property, taxes, medical decisions, etc. The state needs a way to formally recognize a legal marriage along with its rights and responsibilites. Surely driver licenses are a necessary evil so that fewer drivers are a menace. Building permits and zoning are conceived to protect the safety and property rights of others. Etc. I'm not a libertarian. I see anarchy as as disagreeable as totalitarianism. There is a happy medium in the American Constitution as ordinarly understood and applied for maximum freedom so long as it does not infringe the equal rights of others.

[Sachem]

Thank you for the welcome. I have been well treated.

I share your affection for the Declaration and see it as the blueprint, the foundation, for all that followed. The Constitution and Bill of Rights and other amendments make little sense without it.

Much of the second paragraph is as sublime as anything ever written. It is tantamount to scripture for me.

I wonder what George III thought when he read it?

[Sachem]

>Why "rare?"

Rare because abortion is a failure, an ugly business, the end of a bad decision to have sex, or perhaps even the result of rape, incest or the likely death of the mother.

I understand that abortion terminates what would otherwise become an undisputed human life and for very many people it is ending a human life. What decent person could take that lightly? I don't.

[Sachem]

Hello Mr. Smith

I am a little puzzled by your post. If I misunderstand you in an important way please re-state it for me.

When I object that Madison would not have accepted another poster's objections to "minting new-found rights" you suggest that I learn a little of what Madison had to say about his Bill of Rights. I have tried to. I have indeed read Madison's 1789 speech to the House of Representatives, which you excerpt, many times.

Further, it is precisely because Madison spends time on the question of the danger of enumerating some rights to be secured against governmental usurpation that others not enumerated might be disparaged, 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 than merely those listed in the Bill of Rights. There would not have been any newly-minted rights for these folks, they could hardly conceive of a liberty that was not theirs, and if strict construction meant they would have only the rights specifically enumerated against federal encroachment, they'd have had none of it. Your excerpt says so. They weren't going to ratify without the Bill.

To see what he really meant (read the speech) I would have quoted Madison a little differently:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of [federal] power, it would disparage those rights which were not placed in that enumeration..."

Here you have the clear and central refutation of the unhistorical misconception that our rights are no more than are mentioned specifically in the Constitution and Bill of Rights. If I could underline any point for my fellow discussants it is this one. If this is not a warning for the federal government (and by extension the states) to be extremely reluctant to curtail any liberty, what is it? If this is not an invitation for judges to look sanguinely on a citizen's assertion of governmental infringement of his rights, any right not infringing that of another, what is it?

Here we are assured we are free men in a free country and the government should mind its business not ours, and, legislatures, executives and judiciaries be damned if they tread these protected grounds.

You then say:

>Yet liberal judicial activists like you argue just the opposite- that the rights would be more secure if they were in the hands of the federal government!

No, not at all. I say the 9th Amendment tells the government to keep its hands off me not just for the listed rights but for any others I might assert that do not infringe the equal rights of others.

>The one requirement to be a believer in a living constitution is a lack of knowledge of the Ninth Amendment.

Here I entirely misunderstand you. I say, with Madison's whispered accord ;-), that the 9th Amendment makes clear that no branch of government is permitted to assume that I have only the rights enumerated in the Bill of Rights. How else can you reasonably construe the amendment and its introduction and passage if it does not mandate seeing the Constitutional guarantees of liberty as far broader than the few precious jewels written there? Further, the grant of powers to the federal government and by extension to the states, are highly constrained not only by the specifics of the Consitution, but by the protections of the Bill of Rights, through and including deliberately unenumerated rights.

Is this not the idea of a "living Constitution?" Could a proper judge do otherwise than to honor the 9th's warning not to stop with the abbreviated list of rights?

[Sachem]

I want to add something that is not a reply to any poster, just to the original message in the thread. I hope I'm doing this right.

Like a lot of people I am a great admirer of Thomas Jefferson and grateful for his contributions to the founding of the nation. Here are some quotes I think are apropos our topic.

"I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." -TJ, Letter to George Washington, January 4, 1786

"Free government is founded in jealousy, not confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power.... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitutions." -TJ, 1799

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual." -TJ to Isaac H. Tiffany, 1819

"No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him." -TJ to Francis Gilmer, 1816.

"Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression." -- TJ, 1st Inaugural, 1801.

Once in a while he was even funny:
"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first." -TJ

[Sachem]

I'd like to add some food for thought from James Madison, author of the Bill of Rights, that addresses the role of the judiciary versus the other branches as regards the protection of our rights. It's from his 1789 speech to the House of Representatives introducing the Bill of Rights.

"If they [the items in the Bill of Rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

[Alberta's Child]

Rare because abortion is a failure, an ugly business, the end of a bad decision to have sex, or perhaps even the result of rape, incest or the likely death of the mother.

I understand that abortion terminates what would otherwise become an undisputed human life and for very many people it is ending a human life. What decent person could take that lightly? I don't.

These are utterly bizarre comments that you're making here, if in fact abortion is nothing more than a medical procedure carried out on someone who is exercising a constitutionally-protected civil right. Basic human rights are not "ugly" in any way, nor should we have any qualms about allowing people to exercise them.

In fact, your response is indicative of exactly what a society becomes when judicial activism rules the day -- when there is no rational basis in what we have come to know as the rule of law. 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." Which is a pretty strong indication that the "constitutional right" in question is a complete fabrication to begin with.