# Judicial activism and conservative judges **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2005, 1:34am UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835 "2005-11-01T01:34:23Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 1:35pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/21 "2005-11-01T13:35:53Z")
> [@Bricker](#): > > When I say, “Activist judge” I refer specifically to a judge that relies on methods of constitutional interpretation that expand the Constitution far beyond what a reasonable reading of the specific text of the document says. I believe the Constitution means what its text says. Oh, that clears it up. Define the following: “expand”, “reasonable”, “reading”, “due process”, “liberty”, and “property”. Thanks. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 1:47pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/22 "2005-11-01T13:47:04Z")
May I please slip in a Toldjaso here? Thanks for your indulgence. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 3:41pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/23 "2005-11-01T15:41:35Z")
> [@Hamlet](#): > > Oh, that clears it up. Define the following: “expand”, “reasonable”, “reading”, “due process”, “liberty”, and “property”. Thanks. expand: to increase the extent, number, volume, or scope reasonable: not extreme or excessive, moderate, fair reading: to learn from what one has seen or found in writing or printing; to interpret the meaning or significance of due process: a process of law sanctioned by settled usage in common and statutory law liberty: the positive enjoyment of settled social, political, and economic rights and privileges property: something to which a person or business has a legal title ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [November 1, 2005, 4:11pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/24 "2005-11-01T16:11:47Z")
So contracting a reading of the Constitution beyond what many consider reasonable is not activist? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 4:31pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/25 "2005-11-01T16:31:10Z")
> [@Maeglin](#): > > So contracting a reading of the Constitution beyond what many consider reasonable is not activist? Reading the text in a unduly narrow, restrictive way, as opposed to a reasonable way? Sure. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 4:37pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/26 "2005-11-01T16:37:41Z")
> [@Bricker](#): > > expand: to increase the extent, number, volume, or scope > > reasonable: not extreme or excessive, moderate, fair > > reading: to learn from what one has seen or found in writing or printing; to interpret the meaning or significance of > > due process: a process of law sanctioned by settled usage in common and statutory law > > liberty: the positive enjoyment of settled social, political, and economic rights and privileges > > property: something to which a person or business has a legal title So how would finding a right to sexual intimacy or the right to have children in the term “liberty” be activist, with those definitions? Wouldn’t finding a person to be “property” be strict constructionist? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 4:42pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/27 "2005-11-01T16:42:35Z")
> [@Hamlet](#): > > So how would finding a right to sexual intimacy or the right to have children in the term “liberty” be activist, with those definitions? Wouldn’t finding a person to be “property” be strict constructionist? I’m not sure what you, specifically, you mean by “a right to sexual intimacy” or “the right to have children.” Neither of those are unfettered rights in the context of _settled social, political, and economic rights and privileges_. Certainly the right to sexual intimacy with your spouse would be a settled right. But the right to sexual intimacy with the part-time teenage bagboy at the grocery store where you’re his manager is not. Which did you mean? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [November 1, 2005, 4:44pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/28 "2005-11-01T16:44:05Z")
> [@Bricker](#): > > Reading the text in a unduly narrow, restrictive way, as opposed to a reasonable way? > > Sure. No, reading the text in a way that is sufficiently narrow as to challenge the collective preference of the majority, calculated loosely. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 4:49pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/29 "2005-11-01T16:49:43Z")
> [@Bricker](#): > > I’m not sure what you, specifically, you mean by “a right to sexual intimacy” or “the right to have children.” Neither of those are unfettered rights in the context of _settled social, political, and economic rights and privileges_. > > Certainly the right to sexual intimacy with your spouse would be a settled right. Let’s focus on this one. Do I have the right to choose whether or not to use contraception with my wife? Did I the day before I got married? ---
**Author:** ![Raja\_Raja\_Chola](https://avatars.discourse-cdn.com/v4/letter/r/e480ec/32.png) [@Raja\_Raja\_Chola](https://boards.straightdope.com/u/Raja_Raja_Chola)\ **Post date:** [November 1, 2005, 5:06pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/30 "2005-11-01T17:06:21Z")
> [@Bricker](#): > > If Judge B overturns a state law that permits medical marijuana as long as its grown, processed, and used wholly within that state, then he is an activist judge: the Constitution does not give the federal government the power to interfere in intratstate commerce. Are you saying that Scalia’s concurrence in _Gonzales v. Raich_ is an example of judicial activism? ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [November 1, 2005, 5:18pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/31 "2005-11-01T17:18:34Z")
> [@Hentor the Barbarian](#): > > Is voting to overturn a law passed by Congress a reasonable measure of “legislating from the bench”? Not at all. If Congress is passing laws that are contrary to the Constitution, then striking them down is certainly not “legislating from the bench” – indeed, one could make the case that allowing them to stand is amending the Constitution from the bench. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [November 1, 2005, 5:21pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/32 "2005-11-01T17:21:12Z")
> [@Bricker](#): > > Mr. Lochner, your bagels are ready for pickup. Yes, and I expect you to make sure the next batch is ready for pickup on time tomorrow, if you have to work your staff round the clock to do it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 1, 2005, 5:22pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/33 "2005-11-01T17:22:03Z")
> [@Raja Raja Chola](#): > > Are you saying that Scalia’s concurrence in _Gonzales v. Raich_ is an example of judicial activism? That’s a tough one. On the one hand, it does follow from earlier precedents, and is only incrimental in its broadening of state power. But the line of reasoning leading to that decision is certainly activist. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 5:32pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/34 "2005-11-01T17:32:39Z")
I love watching lawyerball. It’s a real treat seeing a method of constitutional interpretation called “objective” when it’s based on defining the word “reasonable”. It’s turtles all the way down, right? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 5:41pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/35 "2005-11-01T17:41:08Z")
> [@Maeglin](#): > > No, reading the text in a way that is sufficiently narrow as to challenge the collective preference of the majority, calculated loosely. No, that’s not activism. The job of judges is to interpret the existing written law. If the law as written conflicts with the majority viewpoint, then it’s up to the majority to effect a change in the written law. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 1, 2005, 5:51pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/36 "2005-11-01T17:51:59Z")
> [@ElvisL1ves](#): > > I love watching lawyerball. It’s a real treat seeing a method of constitutional interpretation called “objective” when it’s based on defining the word “reasonable”. No one used the term “objective”\*, so I’m not sure where you’re getting that from. I think the term “least subjective” would be better. Objectivity is a goal that can’t be achieved, but we can try to minimize subjectivity. Based on your posting in other legal threads, your proposed methodology would enshrine subjectivity, not minimize it. \*except the OP, but he didn’t use it in the context you are using it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 5:54pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/37 "2005-11-01T17:54:07Z")
> [@Hamlet](#): > > Let’s focus on this one. Do I have the right to choose whether or not to use contraception with my wife? Did I the day before I got married? When did you get married? I would have decided _Griswold_ differently, and I do think _Griswold_ is an activist decision. It’s very shy on noting any precedents that are on point and full of flowery language about how sacred the marital relationship is. And I agree. A state should not forbid the use of contraception. But that is not a matter addressed in the Constitution. But remember that I’m not advocating a blanket reversal of every case of judicial activism we’ve seen. Today, we’ve built a tower on top of _Griswold_. So today you have a right to choose contracptive use with your wife, a federal constitutional right, based on _Griswold_. But _Griswold_ is based only on the judge’s belief that contraceptive use should be a fundamental right. I agree that it should; I disagree that “it should” equates to “therefore, it’s in the Constitution.” The correct remedy for Connecticut residents in the early 1960s aggrived by the law was to vote out the legislators that made such an unwise law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 5:57pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/38 "2005-11-01T17:57:50Z")
> [@Raja Raja Chola](#): > > Are you saying that Scalia’s concurrence in _Gonzales v. Raich_ is an example of judicial activism? In a manner of speaking, yes. _Gonzales v. Raich_’s result is absolutely compelled by _Wickard v. Filburn_, which was undoubtedly activist. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 6:13pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/39 "2005-11-01T18:13:13Z")
> [@John Mace](#): > > No one used the term “objective”\*, so I’m not sure where you’re getting that from. This isn’t the first thread in which the subject has arisen. > [@](#): > > I think the term “least subjective” would be better. If you think there’s a difference, I suppose you’re welcome to it. > [@](#): > > Based on your posting in other legal threads, your proposed methodology would enshrine subjectivity, not minimize it. It can’t be avoided or even contained, so it doesn’t matter what methodology I propose or what I call it. I’m simply bemused by the oft-repeated assertion that there is something other than turtles down there. It would be more helpful, and enlightening, to clear away that bit of sophistry and discuss the process for what it inherently _is_. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2005, 6:22pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/40 "2005-11-01T18:22:25Z")
> [@Bricker](#): > > I would have decided _Griswold_ differently, I’m assuming you’d go with, despite the 9th amendment, that if a right isn’t in the Constitution, it isn’t really a right? I know that arguing about the idiocy of the law or of standing idly by while the government legislates a right that a vast majority of people would consider fundamental, is of no consequence to you. But, purely from a Constitutional viewpoint, what reason, other than the precise words weren’t in the Constitution, would you think it wasn’t covered? Surely part of the role of the judiciary is to act as protector of the rights of individuals? And, just as surely, the Constitution is clear that the Bill of Rights is not a complete list of rights, correct? What rights are there that aren’t in the Constitution? Any? > [@Bricker](#): > > and I do think _Griswold_ is an activist decision. Why? > [@Bricker](#): > > It’s very shy on noting any precedents that are on point and full of flowery language about how sacred the marital relationship is. I, personally, don’t like how _Griswold_ was written or even the rationale it uses, but, given the alternatives, I’ll take what I can get. > [@Bricker](#): > > And I agree. A state should not forbid the use of contraception. But that is not a matter addressed in the Constitution. Sure it is. The due process clause. > [@Bricker](#): > > But remember that I’m not advocating a blanket reversal of every case of judicial activism we’ve seen. Today, we’ve built a tower on top of _Griswold_. So today you have a right to choose contracptive use with your wife, a federal constitutional right, based on _Griswold_. But _Griswold_ is based only on the judge’s belief that contraceptive use should be a fundamental right. I agree that it should; I disagree that “it should” equates to “therefore, it’s in the Constitution.” The correct remedy for Connecticut residents in the early 1960s aggrived by the law was to vote out the legislators that made such an unwise law. I agree that policy should not be the deciding factor into what rights are protected by the Constitution. But I’m not going to say that what is a right is to be determined by whether or not it is specifically listed in the Bill of Rights alone, especially when the Constitution itself says that’s not so. And personally, I’d be terrified to live in a country where your mode of judicial determination carried the day. [Previous page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=1) [Next page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=3)