Would the means of imposing severe judicial restraint justify the inevitable ends that would result?
Sorry to respond to a question with a question.
I find any comparison of the Supreme Court with a dictatorship ridiculous. The judiciary is one branch of a three branch government. A dictator, for all intents and purposes, IS the government.
The Supremes have a limited amount of power in the over all scheme of things. Checks and Balances and all that jazz. They can’t wage war, and they have no power over the purse.
I think the big thing that stands out is that they can’t even make a single new rule on their own that would cause me to be arrested. They can’t just issue a decision that says “We now declare that apples are illegal. Anyone caught eating one will get 10 years in prison. Thus saith the Court.” If that were the case I’d be concerned. But it’s not.
Not so. Federal district court judge Leonard Sand in Westchester County virtually took control of the city of Yonkers, N.Y. for something like a decade. He used his power for various purposes, including requiring certain spending.
And, of course, the “common law” – i.e. judge-made law certainly includes the power to take any amount of money from individuals and organizations.
Perhaps not. But, they can and have made new rules that got people killed by killerw who were allowed to go free, based on technical legal sins.
To answer yours: ends do not justify means. Judicial activism, for lack of a better phrase, is an improper means, regardless of how noble the ends it leads to or how awful the ends its absence provides. Consent of the governed and all that, you know.**
Fine, but you didn’t answer the question.**
In addition to december’s Yonkers example, please see earlier in this thread were I cited to the federal court’s takeover of the Kansas City school system, which included judidically-ordered property tax increases and judicial orders to build an outrageously expensive magnet school. “No power over the purse” my ass.
That’s the price we pay constitutional protections.
The same system that allows OJ to get away with murder (he can’t be put on trial again because of Double Jeopardy) prevents the government from harrassing me by putting me on trial over and over again on trumped up charges.
It puts the lie to your suggestion that a judiciary willing to find whatever rights it wants in the constitution lacks “the power of the purse.”
In addition to the chronology I linked to on page two of this thread, Google “Judge Russell Clark” and “Kansas City schools” and you’ll turn up plenty of information on this nifty example of the federal courts run amok.
The infamous Dred Scott decision was in part premised on the same notions of substantive due process that the right to privacy is based on; it held, in part, that the federal government could not make the federal territories free because to do so would deny substantive due process to slaveowners bringing their slaves onto that territory.
And there is a whole line of cases from the turn of the century (later effectively overturned during the New Deal) which held that substantive due process included the liberty of “freedom of contract,” and struck down state laws that instituted minimum wages and maximum hours for workers on the grounds that such laws impaired that freedom.
The principle you’re arguing for has a long and less than noble history. If you really want to treat due process as something the judiciary can use to create rights willy-nilly, you’re stuck defending the expansions of rights described above. I don’t envy your position.
“When it comes to protecting the liberties of individuals from government infringement, the ends quite clearly justify the means.”
That’s probably going to be footnote #1 in the decision finding that: a) a fetus is an individual; b) it therefore has right to life and liberty; c) any law allowing abortion of any kind is unconstitutional.
Of course, for the fans of the 9th and 10th Amendments establishing unenumerated rights, that decision would of course be just peachy-keen, right?
Pouring over the decision, I recognize that it seems perverse how the Due Process clause was used. However, I hasten to add that from the looks of things, I’d have to say that the decision was perfectly valid from a legal standpoint at the time.
“Negroes”, as the opinion refers to them, were Property, not citizens. For the General Government to prevent the owner from enjoying the interest in his property, would be to deprive him of his property without due process of law.
It lines up perfectly with all this “original intent” stuff you’ve been going on about.
There is a compelling and substantial government interest in regulating wages and working hours. The right for employers to hire at any wage can be balanced by the governments interest in protecting workers from being forced, out of neccesity, to work 16 hour days of back breaking labor.
I don’t think it would be proper for the Court to “create rights willy-nilly”. There are many things which I think people should be free to do, yet the government has the right to prohibit.
I believe marijuana should be legalized, but don’t think for a second I’d try to argue I had a constitutional right to smoke dope, I’d be laughed out of court (and rightfully so).
The same goes with prostitution. I think it ought to be legalized, but I also recognize that the state has the rightfull power to prohibit it. I wouldn’t have a snowballs chance in hell of winning that in the courts, nor should I expect to.
But wait, if consensual sex is protected by the constitution, and freedom of contract are protected… OH MY GOD I HAVE A CASE!
If you had the choice between our present system and a perfectly benign dictatorship, one that ruled more justly, efficiently, and effectively than our current government could ever hope to, which would you chose?
So you agree with Taney that the federal government was without power to designate new federal territories as free? Good Lord. And your logic is hugely suspect: if a slaveowner knows the territories are free, he knows there is a risk he’ll lose his “property” upon transport there. How is that a denial of “process”? Let’s say state X prohibits Bowie knives and state Y does not; when a resident of state Y visits state X, his Bowie knife is confiscated after following all appropriate procedural processes. Does the visitor have a due process argument against state X?
Dred Scott is an awful, awful decision that was roundly criticized even when it was issued, and rightfully so. That you are willing to defend its perverse logic is unfortunate. **
So now you’re changing your tune – “liberty” only means “liberty” if it happens to be a freedom you personally are interested in. What if a worker is perfectly willing to negotiate for a lower wage or longer working hours? Isn’t the law an infringement on his personal freedoms? If you can use due process to protect the freedom to hump like rabbits, why not use it to protect the freedom to freely contract for the terms and compensation of your own labor?
See, that illustrates the real problem with using notions of substantive due process – it can mean anything, and indeed has meant anything over the course of its history.
I think schplebordnik made this point brilliantly. You should really respond to his argument. **
But why not? If you can convince the courts that toking up and getting laid are areas dealing with your own body such that the state has no business infringing on your activities, why not use substatnive due process to create that right? If SDP is an “ink blot” upon which a judge can write any freedom he sees fit, why is that argument a bad one?
Let’s face it: if that view of due process is true, then the success of your argument depends not on the law, but on the particular political persuasion of whatever judge you happen to appear in front of.
