For Those Who Poo-Pooh the Idea of An Activist Judiciary

Mama mia! Maxed Out Mama has written Establishing A Priesthood Of The Law, and raised the question: “Can a representative form of government survive such an assumption of power by a judiciary appointed to lifetime positions? ”

She submits:
“It is difficult to find any logical limit on the scope of this assumed judicial power save that of the judiciary’s own self-restraint.”

There will be quite a fight before the status quo of decision-making gives up their back door to running the country their own way, despite the voted will of the citizens. Is it any wonder the Democrats are so fiercely filibustering and standing upon their privilege to do so?

We send troops to Iraq to make way for a democratic form of government…will we now bow to an oligarchy usurping our own?

And it is an usurpation.

The struggles for self-rule are increasingly fought in our courts, …there is more to this filibuster question than just congress floor pyrotechnics. Because of the precedent in law-making that activist judges have created, they are now frightened, and those who hold their same shade of politics, that the judges they don’t approve of may now implement law.

It’s scary when your own bogey man comes to bite you, isn’t it?

It is time to reinstitute some of our original consitutional intent into our government. To reinstate the balance of powers. To take our knocks when our favored political party doesn’t hold sway so much as it once did. It is time to remember Lex Rex, and that if we parlay our variable relative theories of morality in variable theories of law, we will move too far away from the finely balanced system that has served freedom so well.

It benefits all to realign the power of the judiciary to what it is called to be constitutionally, and away from the dangerous evolutionary pathway it is now taking.

Or Chaos could become more than a theory*.

Can we turn this around? Or have we so embraced the idea of Oliver Wendell Holmes, Jr., in an ideal of positivism, and the remaking of Lex Rex into our very own plasiticine ‘Living Constitution’? Your Standard is whatever it wants to be (with the man behind the curtain…never mind him…..)

There are many indicators, just open your eyes: The Supreme Court and the juvenile death penalty

A morally good result, supported by less-than-convincing reasoning

This is not a question that will go away, we do have judicial activism, and it is eroding our freedom, undermining the moral integrity of our entire system, which we call a democracy. You might have blinked and winked at Roe vs. Wade… then averted your gaze from the Religious Freedom Restoration Act, but it will come time to pay the piper for the little dance with political dismissal of the original Constitution and its stated intentions.

Have you the fee in hand, which may be the price of your precious freedoms?

*(apologies to the scientific community…at whose expense I make my points)

8 thoughts on “For Those Who Poo-Pooh the Idea of An Activist Judiciary”

  1. Ilona, I think you have hit the nail on the head with the example of the juvenile death case.

    Because we have now an activist judiciary, we also have diverted the focus of political activity and debate away from our representative bodies and to the judicial system. This weakens our political health – there are many debates which are simply no longer being fought in the public square, but move straight to a courtroom.

    The end result will be a disaffected populace with no means to express their displeasure.

    And you are so, so correct that preserving freedom requires the willingness to lose. The willingness to lose can only be maintained when the losers understand that their loss is temporary.

    The Fourteenth Amendment has not in the past been read so expansively. After all, it took subsequent legislation and amendments to give women the right to vote and ensure that blacks got to vote. But the process that led to those amendments and that legislation did create a broad consensus within the population.

    These new measures, I think, will only be rejected. I voted against GA’s same-sex marriage amendment (very similar to Nebraska’s), but even so I do not want my fellow citizens overridden by 13 judges.

    A democracy, it seems to me, must rely upon the public participation of its citizens. Ours, as you point out, is near to becoming a benevolent oligarchy. History makes it clear that such an oligarchy does not remain benevolent for long.

  2. Actually, I think the Fourteenth Amendment held within itself its own truth. It was true that each person should have specific rights as citizens… what had to catch up was the definition of “person”. That same definition which is being challenged in modern issues.

    So I think that the basic premise of Lex Rex holds, it is the variableness of the fads in society that required amendment clarification.

    This doesn’t make it the “living Constitution” in the present legal sense that is being conducted.

    The amendments were in line with the original intent: vouchsafing the rights of the citizen within the state. It just took awhile to recognize specific groups as citizens, but the pressure of truth was on the side of it righting itself. As soon as blacks and women were recognized as full fledged persons, they could not be long denied citizen rights without risking all the rest.

    I believe the consensus led to the amendments… would Southerners have broken union if it did not seem that slavery was eventually to be done away with? They saw the tide was turning and that in a full union of the States, the North had the numbers on their side.

    So I guess that shows that some losses aren’t temporary…. and the desperate measures men will take to keep power in their hands.

    It has always been a difficult balance. In true freedom there are always failures and losers- that has to be allowed for…

    but doesn’t go down well on the palate.

  3. Judicial activism is myth. It does not exist in the way that many Americans think it does. I don’t know if this myth is just because most Americans really don’t understand the legal system or that they can’t really read a decision, but it is a falsity. Judicial activism in reality, only means a judge who does not rule in the manner you want.

    Lefts go through a couple that people have been crying ‘judicial activism’ on.

    Juvenile death penalty – This is mandated to be interpreted by the Supreme Court by the constitution. This was never intended to be left to the states. Cruel and unusual punishment was included in the bill of rights. That means, the SC is required to interpret what cruel and unusual means. The reason they left it so broad is because they wanted it to be an evolving definition to be reinterpreted from time to time.

    Terri Schiavo – People cried judicial activism on this case. This was ANYTHING but judicial activism. The judges held to the letter of the law. You cannot blame the judges, you have to blame the Florida legislators.

    Nebraska anti-gay marriage – people are crying judicial activism on this also. Once again, this is anything but judicial activism. At no time during the case did the proponents on the amendment show how restrictions of civil liberties for a specific class of people comports with the 14th amendment. Once you remove all of the religious and traditional arguments, there is just no legal support for the amendment. The judge was staying wholly within the constitution. In actuality, it would have been judicial activism to uphold the law because it would have created NEW restrictions that otherwise did not exist.

    Do judges sometimes make bad decisions? Yes, of course. Just like legislators sometimes make bad laws. But there is judicial review by appellate courts to correct that.

    and, BTW, if you are afraid of judges who will make law, I am assuming you are 100% against doing away with the filibuster. That could only make judges more partisan.

  4. I love when someone starts out with “‘judicial activism is a myth”. It immediately tells me that they are going to give me an unsupported preaching session.

    And yes, dingo, that is what you gave me. Where is your support for your contentions that “Once you remove all of the religious and traditional arguments there is just no legal support ” you have meant *what* by “traditional” ? Are you including the use of precedent in deciding cases as “traditional”?

    The fact is that we do have judicial activism. We have a judiciary that is increasingly bold in overturning legislated law and instituting their own subjective philosophy in making of law. And no one can stop them, because the judiciary does not have a balance to their lawmaking decision- that was to be held in trust in congress for the people. And this is well-known in study of law- that there is such a thing as “positivism” and there is such a thing as the judicial reinterpreting the Constitution , not in light of original intent through the expressions of the founders or precident, but upon their own subjective power of decision making.

    You would like to say that is within their constitutional duty, but it is not supported by precedent, but making new precedent, often by fiat.

    Ex. when prayer, Bible reading, etc. was removed from the schools, what arguments did the court use? It wasn’t precedent, it wasn’t the Constitution, but an argument that reading from the Bible without explanation could be psychologically harmful.

    The Schiavo case was not one of activism, it was one that pointed up the poor moral structure in our medical decision/court process. There was great wrong there-but I wouldn’t have used it as a judicial activism example. Poor judgement, yes.

    Judicial activism is being used in the gay marriage case. Just because you say the opposition can’t make a good case, doesn’t mean you have a good case , which is supported by the Constitution. My argument is that it is making a social change that impacts society in a largely unknown way for a special group. For what great gain? What does marriage do that can’t be done by the means available now? Except to foist a moral judgment upon the majority who are voting that they do agree to this.

    Concerning the “Juvenile death penalty”,” interpreted by the Supreme Court by the constitution” is not what is being done. General definition on morality is decided, which is what the populace should decide on, not a singular judge or group of judges. You are right -the terms were left broad _to keep the power of this decision with the people_ in the article it says:”The Court has long held that the answer must be determined by reference to “the evolving standards of decency that mark the progress of a maturing society.” (However, originalist justices, such as Antonin Scalia. have never agreed.)”

    Reading that ‘originalist judges’ did not agree shows that it was not determined in light of the Consitution. It was subjectively determined by the judges.

    “BTW, if you are afraid of judges who will make law, I am assuming you are 100% against doing away with the filibuster. That could only make judges more partisan.”

    you did not read me carefully. I am most assuredly against the filibustering as it is being used. I am not afraid of anything here… I am protesting that judges who *make* law are unlawfully usurping duties not theirs. It doesn’t make the judges any more _anything_ to remove the endless filibustering. what I have said is that we need to move the judiciary back into the proper Consitutional alignment of making sure the Constitution is obeyed. That will take care of the partisan problem to all rational degrees. And yes, boot out the bad judges and get some better ones in there. Ones who take their duty to the Constitution and the people seriously enough to show integrity in judgement.

    It is you who should fear how far the judicial activism has gone now, because the will of the people is to stop the back door big brother interventions and interference with liberty. And we will have conservative judges in the courts.

    Like all things in a democracy, it will all depend on the personal moral dedication of the judges themselves to not use it for partisan and social engineering -as has been done- in such cases as Roe vs. Wade.

  5. “doesn’t mean you have a good case , which is supported by the Constitution.”

    Please tell me how “nor deny to any person within its jurisdiction the equal protection of the laws” can be not violated by passing an amendment that denies a group of people equal protection of the laws merely because they are gay? In order to legal restrict rights for a group of people, the government must have compelling interest in such. What is the compelling government interest that can not also be applicable to heterosexuals?

    “My argument is that it is making a social change that impacts society in a largely unknown way for a special group.”

    how is it unknown? Homosexuals have been openly living together for decades now. Other than the fact that they can have rights of inheritance, decisions on medical care, etc, nothing will change. So, if it won’t affect you, why so opposed to it?

    “For what great gain?”

    Hmmm, liberty maybe.

    “originalist justices”

    Just because someone calls themselves an originalist judge, doesn’t mean they are such. Scalia has to interpret as much as any other judge. That’s just a fact.

    “you did not read me carefully. I am most assuredly against the filibustering as it is being used.”

    I was joking. I don’t understand how people who want judges to rule on the law can support either party packing the courts with partisan judges. Allowing unfettered control for a political party to appoint judges will only increase the absence of constitutional restraint.

    “It is you who should fear how far the judicial activism has gone now, because the will of the people is to stop the back door big brother interventions and interference with liberty.”

    These judges have been expanding liberty, not restricting it. They are saying that you have more rights, not less. How is this an interference with liberty?

    “Like all things in a democracy, it will all depend on the personal moral dedication of the judges themselves to not use it for partisan and social engineering -as has been done- in such cases as Roe vs. Wade.”

    Ok, now you are being really hypocritical. Legal abortion is backed by the majority of americans. Making it illegal would be social engeneering. You have to pick one or the other Ilona. You can have it both ways.

  6. First, dingo, if you want to tack on labels of “hypocrite” you are going to have to find something that applies. Because you are much younger than I am, you don’t seem to know the history on the abortion decision. At least I am going to give you that excuse. When Roe vs. Wade changed things the states had voted laws on the books. Most were against abortion as it is now practiced. A few allowed it. The majority of Americans were against abortion on demand. Now stick your little ad hominem in your pocket for later. Or were you joking again?
    “I was joking”- for me, you will have to add the JK, because I can’t tell over a screen.

    “You have to pick one or the other Ilona. You can have it both ways.”
    You tend to rely an awful lot on false dilemmas.

    “how is it unknown? ” The impact of change in law concerning something as far-reaching and foundational as marriage is unknown.

    “So, if it won’t affect you, why so opposed to it?”
    How do you know that, can you guarantee that?
    You don’t and you can’t.

    “someone calls themselves an originalist judge”

    they didn’t call themselves that, they were categorized by the author, and probably many others -based on their record of rulings.

    “These judges have been expanding liberty, not restricting it.”

    You know, this is a whole argument to be made in itself, but here I will relegate myself to ” that isn’t the issue, is it?” the issue is judicial activism going far beyond the constitutional bounds of the position given to the judiciary.
    and…and…oops, what happened to your original contention that judicial activism is a MYTH? whoopsie.

    see. housewives do think on occasion- even redstate housewives.

  7. addendum:
    on Scalia, the definition of originalist, etc.,- the matter is not that judges wouldn’t interpret, it is a matter by *what* they interpret. To interpret by the original intent of the founding documents and those papers which shed light on the intent of those or by established precedent based thereon is proper, to interpret by subjective political (partisan) desires to make law is something quite different and improper.

    and therein is the illustration of judicial integrity as opposed to judicial activism which usurps the authority from The People.

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