I consider myself a liberal, but I don’t want people to vote if they aren’t going to actually consider the choices, and I definitely don’t want to create tenured leaders.
My rationale for justices considering the wider range ramifications has nothing to do with that. It has to do with the fact that I think it is impossible to make a good decision without knowing how that decision is going to affect a broader scope. Like it or not, by being able to judge whether a law is constitutional, they have more power than the rest. Their only checks are impeachment under bad behavior and amending the Constitution, both of which are rather rare. Once they make a decision, the elected officials, in practical terms, not going to be able to do much about it.
You don’t know how badly I wish the Supreme Court had less power. In my opinion, the mistake happened back when the Constitution was written, as their powers were not expressly limited, and thus were able to give themselves the power of judicial review, without the lawmakers being able to make sure it was properly balanced out, like the powers of the other branches.
But since that is impossible to fix, I’d want to mediate the damage by making sure good people get the seats, and are allowed to make good decisions. And, as I said, that requires knowing the consequences of your actions.
I think this is less of a principled position than a partisan one. The courts have in the past sided with the progressives and overturned unconstitutional laws and practices enacted by elected officials.
“Whaddya mean I can’t apply a literacy test before I let someone vote, its facially neutral, nothing racist about it. Of course if your grandfather could vote, then the literacy test doesn’t apply to you, the fact taht this tended to benefit illiterate whites but NOT illiterate blacks is pure coincidence.”
“Whaddya mean we have to give criminals a little speech every time we arrest them so that they don’t unwittingly waive their constitutional rights, how the hell are we suppsoed to get confessions if we tell them they have a right to a lawyer BEFORE they talk to us.”
Now when the Court overturns liberal laws (like gun control laws) they are not really being activist, they are just faithfully interpreting the constitution (in a way that they like).
People aren’t concerned about judicial activism when the judges see the law the same way they do. I bet the Libertarians on this board wold be overjoyed to see judicial activists start giving some real teeth to the 10th amendment and judicially eliminating large swaths of the government. They would just see that as the court correctly interpreting teh Constitution.
Well, in much the same way, a lot of people view Roe v. Wade as the court interpreting the constitution (words that (unlike the second amendment) don’t actually exist in the constitution but that’s neither here nor there).
I don’t think there’s anything self-evident about the constitutionality of Miranda rights (or of the unconstitutionality of arresting and/or convicting someone without them). Some might reasonably argue that if you don’t know your rights, that’s your problem.
I guess I was sayign that tehre is nothing constitutionally self evident about any of that stuff. Even the recent 2nd amendment cases were not self evident. Interpretation is what judges do. Even district court judges have to effectively make law in cases of first impression, they can get overturned by circuit courts and circuit courts can get overturned by the supreme court. The supreme court can be overturned by a constitutional amendment.
Certainly the recent second amendment cases were self-evident. The second amendment exists. It’s there, in plain text.
Well, let’s refine that statement a bit. Heller was self-evident. MacDonald, not so much, because the doctrine of “incorporation” against the states is itself not self-evident.
Whenever you have to twist and wriggle to get the text to say what you want it to, you’re straying. I agree that MacDonald’s decision rests on earlier decisions that did just that. If you accept the earlier decisions as a part of the valid framework of laws, then MacDonald becomes reasonably evident. But you cannot, on a principled basis, argue that other rights are somehow magically incorporated against the states, but not the second.
Yes, judges interpret, no matter what. But when you start the process with a judge who believes his role is ONLY to interpret, only to give effect to the legislature’s words, I content you have far less in the way of flights of fanciful interpretaion than when you begin with a judge who believes his proper role is to help shape social policy, to guide the nation’s evolving standards of decency, or similar language.
You have to go back over a century to find a nontextual conservative decision that was ridiculed by conservatives?
I am not saying there are “some folks” who want their side to win. I am saying that MOST folks feel this way and the ONLY reason there is such love for a non-activist judiciary is because the legal battles have largely gone in one direction. If the history of judical activism had defended segregation and the right to bear arms in large cities and literacy tests in the south and overturned FDR’s new deal, the liberals would be the ones squeeling about judicial activism overturning the will of the people. We have a common law systen not a civil alw system, our judges are more than mere referees, they make up some of the rules as they go along to fill the holes and gaps in the law.
I thought both the second amendment cases were pretty clear but there was a competing theory of the second amenedment as a right given to the states and not to individuals (it wold be the only right with this distinction, a distinction that we are supposed to read between the lines).
A judges role is not ONLY to give effect to teh ligsislator’s words. That is what constitutional interpretation is about. Legislators are not allowed ot pass alws that are not constitutional. the judiciary gets to say what is or is not constitutional. See Marbury v madison