# Another blow to the "Rule of Law". **URL:** \ **Category:** Great Debates\ **Created:** [November 17, 2004, 2:42pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264 "2004-11-17T14:42:13Z")\ **Posts on this page:** 11\ **Page:** 3
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [November 22, 2004, 6:28pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/41 "2004-11-22T18:28:48Z")
> [@Fear Itself](#): > > sheeple 1. You have misspelled “a majority of Americans.” 2. You are factually incorrect about the term “activist” being applied to the Supreme Court or to its decisions only recently. You made this error in the exact same sentence in which you essentially called a majority of Americans idiots. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 22, 2004, 6:38pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/42 "2004-11-22T18:38:05Z")
> [@Fear Itself](#): > > The point was that wasn’t called an “activist decision” in 1905. The term is a relatively recent buzzword invented by the right so the red sheeple will know who to oppose. Really? Fascinating. So, if I were able to point to the use of “activist” in contemporary accounts describing Lochner, or New Deal jurisprudence, or Warren court decisions… you’d change your mind about all of this? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 22, 2004, 6:39pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/43 "2004-11-22T18:39:29Z")
> [@SuaSponte](#): > > As was _Marbury v. Madison_ in 1803. > > Sua True, in a manner of speaking. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 22, 2004, 8:25pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/44 "2004-11-22T20:25:00Z")
> [@manhattan](#): > > 1. You have misspelled “a majority of Americans.” > > 2. You are factually incorrect about the term “activist” being applied to the Supreme Court or to its decisions only recently. You made this error in the exact same sentence in which you essentially called a majority of Americans idiots. Well, let’s be exact, **manhattan. You** meant to say, “majority of those who voted in the last election.” But yeah, **Fear Itself,** yer dead wrong on this one. The cry of “activist judges” has long been part of the American political lexicon, and the hue of the persons crying it has depended on who disliked the decision in question. As **Bricker** points out, _Lochner_ was decried as activist (Oliver Wendell Holmes, in dissent, accused the majority of being “legislators”), and the decision there held that New York’s law limiting working hours to 60 week was unconstitutional. Trust me, it wasn’t big business bewailing that decision, but the Progressives. Similarly, the Supreme Court of the 1930s, which held big chunks of New Deal legislation unconstitional, was decried as activist by the left - the Supreme’s obstruction of the New Deal is what led to FDR’s plans to pack the Court. Sua ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 22, 2004, 10:42pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/45 "2004-11-22T22:42:59Z")
> [@Bricker](#): > > So, if I were able to point to the use of “activist” in contemporary accounts describing Lochner, or New Deal jurisprudence, or Warren court decisions… you’d change your mind about all of this? What, you found some “Congress critter” that used that term in 1905? Sorry, I’m not the fool you think I am. Regardless, it has become much more widely used by the right in the last 20 years as an epithet for liberal judges, while equally activist conservative judges are merely “well qualified”. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [November 22, 2004, 11:13pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/46 "2004-11-22T23:13:06Z")
As Bricker points out, Lochner was decried as activist (Oliver Wendell Holmes, in dissent, accused the majority of being “legislators”), and the decision there held that New York’s law limiting working hours to 60 week was unconstitutional. **SuaSponte** and **Manhattan** , please cite for actual use of the term _activist_ as used to describe judges in _Marbury v. Madison_ or _Lochner_ prior to 1965. **SuaSponte** , can you give a source for the Oliver Wendell Holmes accusation about the majority acting as “legislators”? If not, I will take your word for it anyway and concede my own earlier point. I’m glad to know that the SCOTUS is simply carrying on with a tradition established so long ago. (I take pleasure in noting that it was a dissenter who made the accusation.) ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 22, 2004, 11:27pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/47 "2004-11-22T23:27:21Z")
> [@Zoe](#): > > **SuaSponte** and **Manhattan** , please cite for actual use of the term _activist_ as used to describe judges in _Marbury v. Madison_ or _Lochner_ prior to 1965. > > **SuaSponte** , can you give a source for the Oliver Wendell Holmes accusation about the majority acting as “legislators”? It was in Harlan’s dissent, not Holmes’s > [@](#): > > No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 22, 2004, 11:45pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/48 "2004-11-22T23:45:39Z")
> [@Zoe](#): > > **SuaSponte** , can you give a source for the Oliver Wendell Holmes accusation about the majority acting as “legislators”? If not, I will take your word for it anyway and concede my own earlier point. I’m glad to know that the SCOTUS is simply carrying on with a tradition established so long ago. (I take pleasure in noting that it was a dissenter who made the accusation.) Sure. Here’s the first few sentences of Holmes’ dissent in _Lochner_: > [@](#): > > This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. As for your request for a cite of the actual term “activist,” may I say you are being a bit pendantic. Phrases such as “legislating from the bench,” “going beyond the bounds of the law,” “acting as legislators,” etc. all have the same meaning. In any event, I will endeavor to satisfy your request. Sua ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 23, 2004, 12:01am UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/49 "2004-11-23T00:01:26Z")
Got one for _Marbury v. Madison,_ **Zoe** , from Thomas Jefferson: > [@](#): > > “In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that ‘the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’ If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . **The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.** ” I don’t think T.J. would be so base as to use a word such as “activist,” but you take his meaning. [http://www.landmarkcases.org/marbury/jefferson.html](http://www.landmarkcases.org/marbury/jefferson.html) ---
**Author:** ![Polerius](https://avatars.discourse-cdn.com/v4/letter/p/d78d45/32.png) [@Polerius](https://boards.straightdope.com/u/Polerius)\ **Post date:** [November 23, 2004, 12:44am UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/50 "2004-11-23T00:44:42Z")
> [@SuaSponte](#): > > Got one for _Marbury v. Madison,_ **Zoe** , from Thomas Jefferson: > > I don’t think T.J. would be so base as to use a word such as “activist,” but you take his meaning. Do any of you have the resources to find out when “activist judges” (the exact phrase) was first used? ---
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [November 23, 2004, 3:25pm UTC](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264/51 "2004-11-23T15:25:33Z")
Dunno about “activist judges,” but “judicial activism” has been the description of a school of thought in contrast to “judicial restraint” for decades. [Here’s a book from '72](http://www.amazon.com/exec/obidos/tg/detail/-/0669810428/qid=/sr=/ref=cm_lm_asin/104-6178211-8451148?v=glance). It doesn’t take a wordsmith of George Bush’s known ability ( 😉 ) to make the transition that a judge who is a judicial activist is an activist judge. [Previous page](https://boards.straightdope.com/t/another-blow-to-the-rule-of-law/275264.md?page=2)