# Judicial activism is a good thing, unless you disagree! And how long have we had it? **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2004, 11:14pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565 "2004-11-18T23:14:17Z")\ **Posts on this page:** 16\ **Page:** 19
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 5, 2004, 7:46pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/361 "2004-12-05T19:46:37Z")
> [@Huerta88](#): > > I’ve been making the point throughout this thread that people are oddly eager to opine on technical matters of constitutional law absent any understanding (professional or lay) of how this works. I don’t see what’s so odd about it, given that the thread isn’t about technical matters of constitutional law, but rather about the philosophical underpinnings of how law should be understood. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [December 5, 2004, 9:44pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/362 "2004-12-05T21:44:38Z")
> [@Gorsnak](#): > > I don’t see what’s so odd about it, given that the thread isn’t about technical matters of constitutional law, but rather about the philosophical underpinnings of how law should be understood. It’s not **only** about technical matters of constitutional law, but it’s also not **only** a free-floating debate about the nature of how law should be understood. That latter issue was at least partially (and conclusively, for now) resolved for Americans when the U.S. was established. Thus, for instance, theories of law that are dependent on, say, the divine right of kings, or that contemplate a tribal loya jirga deciding disputes, or that would seek to codify all law (as in civil law countries), are perfectly fine in a general debate over the philosophical underpinnings of how law should be understood, but are not relevant to understanding how the _U.S. constitutional system_ should be understood. To understand how and why the U.S. Constitution is consistent with certain views of how law should be understood, made, and applied, but precludes other views (a loya jirga system, a civil law system, or a system in which states have to precursively justify their legislation rather than relying on the plenary police power), does indeed require an understanding of how the checks and balances are set up in the U.S., what arguments are possible under the Constitution and its historic construction, and which approaches don’t work and never have _even from the standpoint of the most liberal judicial activist_ (e.g., declaring that “equal protection” **obviously** means that everyone gets equal benefits under the laws, no matter how dissimilarly situated). ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 5, 2004, 10:16pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/363 "2004-12-05T22:16:01Z")
> [@Huerta88](#): > > That latter issue was at least partially (and conclusively, for now) resolved for Americans when the U.S. was established. Say what? I can only assume you misunderstood by what I meant by ‘how the law should be understood’. This question, as I’m intending it, is not about whether the government should be structured as a monarchy, a parliamentary system, or a representative republic. The question is about how we go about understanding and interpreting what a given piece of legal text means. Let us take an example: > [@Constitution Act](#): > > 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This is Section 1 of the Charter. Now, it is clearly stating that some restrictions on the legal rights granted by the Charter are acceptable. But it doesn’t define “reasonable limits” or “demonstrably justified”, and what these phrases mean determine the extent of the burden on the government if it is to defend a restriction on a right. So how do we go about figuring out what those phrases mean? This isn’t a technical question about constitutional law. Well, okay, if the question is, how have the courts actually gone about interpreting those phrases, and how may we expect them to do so in the future, then sure, it’s a technical question about constitutional law. However, that’s not the question. The question is, how _should_ the courts approach the interpretive task? The answer to this question is entirely up for grabs. The Strict Constructionist prefer one interpretive approach. Others prefer alternative approaches. This is a debate over a matter of normative ethics, and not over legal technicalities. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 5, 2004, 11:29pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/364 "2004-12-05T23:29:16Z")
> [@Stratocaster](#): > > No. Judges can decide cases as they currently do. I would prefer, though, they they do so via applying the law, not in deciding the most “just” outcome despite what the law says. Our context here has been the Supreme Court, which does not have the luxury that a trial court has of simply going through the recipe book and functioning automatically. At the uppermost levels, the courts do have the job of, effectively, \*deciding \* what the law is when it’s unclear or conflicting or its constitutionality is debatable. The straightforward cases never get there anyway and needn’t be discussed here, or anywhere really. > [@](#): > > I don’t want Justices exercising this sort of power even when I agree with the sense of justice being evoked. Why? Because I don’t want them to be able to do so when I _don’t_ agree. Unfortunately (for you, that is), you’re no less subject to human nature than anyone else. Putting up with stuff you don’t agree with is part of life in a society that includes others, because you cannot exclude the possibility that you’re just wrong. **Dewey** , what you’ve made clear is that the first half of the Second Amendment is not just “preamble”, unless you define the word to mean “stuff that can and should be ignored entirely when interpreting what grammatical structure leads one to think is the actual substance”. Your numerous (and sometimes choleric) posts to that effect can be retrieved if necessary, and I stand by my assessment of them. **Huerta88** , it would be well for you, like **strat** before you, to consider just how seriously you wish to be taken here. Contributing some actual substance for once just might help, okay pal? There’s an Abuse Clinic already, three doors down on the left. Speaking of whom, > [@stratocaster](#): > > I don’t know what to say other than, I disagree. That cuts no mustard here, of course. Try harder. One thing you _could_ say, for instance, is “I might be wrong about that, let me think about it some more and I’ll get back to you.” ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [December 5, 2004, 11:34pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/365 "2004-12-05T23:34:55Z")
> [@Stratocaster](#): > > “Consent of the governed” in our system doesn’t require unanimous decisions. In fact, it doesn’t even require a majority. Funny, eh? But that’s how democracy often works, a system that Churchill described as the worst form of government in existence, except for all the others. 😉 Not as far as what action we are going to take as a nation, no. But as to what rights governments are allowed to restrict unanimity is required. Even if everyone in the country except one person agrees that a newspaper should be restricted from publishing an item of news, governments have no power to do so. I know that the Constitution says that “Congress shall make no laws … abridging freedom of … the press.” which doesn’t say anything about state governments’ power. I think that this and other Bill of Rights provisions were extended to states some time in the 1950’s and it seems reasonable to me that that extension includes all other unspecified rights that governments ought not restrict without justification. If such an extension to the states was “judicial activism” so be it. I don’t see how it makes any sense to try to enlarge freedom by restricting the central government from interfering with the rights of the people if the states are allowed to do so freely. > [@Stratocaster](#): > > Judges can decide cases as they currently do. I would prefer, though, they they do so via applying the law, not in deciding the most “just” outcome despite what the law says. > > * * * > > Yes, and in our form of government, the legislative branch (peopled by duly elected representatives) is the one that passes laws, not the judiciary. But you see, you are defining what judges do according to your opinion. Not everyone agrees that judges are making laws. Some people, just as learned in the law as those arguing that judges are sometimes out-of-bounds activists, see those decisions with which you disagree as merely preventing governments from infringing upon the people’s rights without sufficient justification. In fact some of those people who disagree with you are Supreme Court or other Federal Judges whose legal experience and learning is widely respected. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 6, 2004, 12:31am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/366 "2004-12-06T00:31:39Z")
> [@ElvisL1ves](#): > > **Dewey** , what you’ve made clear is that the first half of the Second Amendment is not just “preamble”, unless you define the word to mean “stuff that can and should be ignored entirely when interpreting what grammatical structure leads one to think is the actual substance”. Your numerous (and sometimes choleric) posts to that effect can be retrieved if necessary, and I stand by my assessment of them. Go for it, sparky. Though it would probably be appropriate to avoid a continuing hijack by starting a new thread. > [@ElvisL1ves](#): > > **Huerta88** , it would be well for you, like **strat** before you, to consider just how seriously you wish to be taken here. Contributing some actual substance for once just might help, okay pal? There’s an Abuse Clinic already, three doors down on the left. Are you reading the same thread I am, or are you posting on some bizarro-world SDMB? Because I see **Huerta** raising entirely legitimate substantive arguments, and I see you, well, pounding the table. ---
**Author:** ![drhess](https://avatars.discourse-cdn.com/v4/letter/d/94ad74/32.png) [@drhess](https://boards.straightdope.com/u/drhess)\ **Post date:** [December 6, 2004, 1:29am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/367 "2004-12-06T01:29:15Z")
> [@drhess](#): > > As a non-lawyer, I think this thread itself just goes to show that interpretation is a nightmare. People went very quickly from the Constitution to various Federalist Papers and early debates which just shows that it is not entirely clear what each intent was. That, of course, makes sense since there was considerable discord on many points, as there always is. > > Here’s a history question, if anybody knows: When did accusations of violating the Constitution start? Did the Founding Fathers, or their peers, start debating interpretation soon after the ink dried? Can anybody address this question? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [December 6, 2004, 1:48am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/368 "2004-12-06T01:48:54Z")
> [@ElvisL1ves](#): > > Speaking of whom, That cuts no mustard here, of course. Try harder. One thing you _could_ say, for instance, is “I might be wrong about that, let me think about it some more and I’ll get back to you.” Yes, yes, of course, since that’s a stance you routinely take. :rolleyes: ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [December 6, 2004, 1:58am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/369 "2004-12-06T01:58:12Z")
> [@David Simmons](#): > > Not as far as what action we are going to take as a nation, no. But as to what rights governments are allowed to restrict unanimity is required. Even if everyone in the country except one person agrees that a newspaper should be restricted from publishing an item of news, governments have no power to do so. Not to pick nits, but that is only because a majority of people agree that this should be so. When an amendment is voted in that abolishes the first amendment, then newspapers can be restricted from publishing, and that restriction would flow from the consent of the governed still. You see my point? > [@](#): > > I know that the Constitution says that “Congress shall make no laws … abridging freedom of … the press.” which doesn’t say anything about state governments’ power. I think that this and other Bill of Rights provisions were extended to states some time in the 1950’s and it seems reasonable to me that that extension includes all other unspecified rights that governments ought not restrict without justification. If such an extension to the states was “judicial activism” so be it. I’m not aware of any interpretation of states’ rights that says they can circumvent the checks and balances of the three branches of government, one of which is that only the legislative branch passes laws. > [@](#): > > But you see, you are defining what judges do according to your opinion. Not everyone agrees that judges are making laws. Some people, just as learned in the law as those arguing that judges are sometimes out-of-bounds activists, see those decisions with which you disagree as merely preventing governments from infringing upon the people’s rights without sufficient justification. I am all for this, so long as this prevention has as its basis some form of established law, in particular constitutional law. Otherwise, we are subject to the whims of individuals, which is the antithesis of our democratic system. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [December 6, 2004, 2:37am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/370 "2004-12-06T02:37:15Z")
> [@drhess](#): > > Can anybody address this question? **drhess** , I’ll attempt a brief answer. When you speak of accusations of “violating the Constitution,” or “judicial activism,” especially the latter, you are probably speaking of a term (with reference to policy-making by liberal judges) dating back about . . . 30 years, and reflecting dissatisfaction with the Warren Court, etc. dating back about another 15. More broadly, though, people have always fought over the Constitution. **Marbury vs. Madison** was a very early case in which one of the issues we’re discussing here – whether judges are legitimately to have a substantial role in second-guessing the state or federal legislature on policy grounds – was debated, albeit I’m pretty sure no one used the exact term “judicial activism” in 1803 (they may have spoke of violations of the Constitution – I’ll go back and check what sources I have). It had by no means been clear at the time, suffice to say, that the Framers had intended to empower judges this way. There are those who think **Marbury** was not good law, but acknowledge the practical improbability of getting it overturned any time soon. Even in the post- **Marbury** era, the possibility of judges in some instances reviewing legislative enactment has not answered the question of how often and under what impetus they may do so, and what their remedial powers properly are. I will try to think of some other examples throughout U.S. history when this specific issue was debated, and how it was addressed. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [December 6, 2004, 5:56am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/371 "2004-12-06T05:56:52Z")
> [@Stratocaster](#): > > Not to pick nits, but that is only because a majority of people agree that this should be so. When an amendment is voted in that abolishes the first amendment, then newspapers can be restricted from publishing, and that restriction would flow from the consent of the governed still. You see my point? Yes I do and it’s a good point. A few years ago I would have said this is so hypothetical as to be not worth discussing. However since the terrorism panic I’m not sure about that. > [@](#): > > I’m not aware of any interpretation of states’ rights that says they can circumvent the checks and balances of the three branches of government, one of which is that only the legislative branch passes laws. I don’t understand this? Do you mean the three branches of the federal government or that states must have a checks and balance arrangement of three branches? In either case I don’t think the actual operation of government is as clean-cut as you would make it out. There doesn’t seem to be that clean a break between the judicial and some executive functions. For example, the executive branch contains many boards which consist of non-elected official who perform a judicial function with respect to the regulations that implement just how a law is administered. These administrative boards conduct hearings with regard to disputes about the regulations and make a decision that is legally binding on the parties involved. Such administrative decisions can be appealed to the courts (I think) but the administrative remedy must be followed to a conclusion before a court will take the case. The example with which I am familiar is procurement by the Armed Forces. Congress gave authority of the services to contract for procurement of materiel. Pursuant to the law the services formulated a set of procurement regulations (Armed Services Procurement Regulations - ASPR) governing how such contracting is to be done. If there is a dispute with a contractor he must first appeal to the Armed Services Board of Contract Appeals which conducts a hearing and renders a decision. I don’t know how many such decisions are appealed to the Courts or what the results are, but I suspect that few are and even fewer such decisions are reversed. So it isn’t at all unusual for non-elected officials to make rulings that have the force of law in governmental affairs. > [@](#): > > I am all for this, so long as this prevention has as its basis some form of established law, in particular constitutional law. Otherwise, we are subject to the whims of individuals, which is the antithesis of our democratic system. I’m sorry but I don’t agree that Supreme Court or any other Court’s decisions that is handed down after a thorough heaing on the matter are the “whims of individuals.” And this leads to a mutual feeling that we both think the other is perfectly happy with favorable decisions and unhappy with the others. I happen to think that Justice Holmes’ decision that a corporation is a person was horrible and certainly “judicial activism” if there is any such thing. If Holmes was right then maybe we should draft such “persons” during times of dire national emergency. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [December 6, 2004, 3:26pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/372 "2004-12-06T15:26:15Z")
> [@Huerta88](#): > > … or a system in which states have to precursively justify their legislation rather than relying on the plenary police power… Plenary power, eh? All states have Constitutions that grant _them_ certain powers and limits their authority. Governmental power comes from people, not from above. From which **state** constitution is this? > [@](#): > > Source of political power–origin, basis and aim of government. > Section 1. That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole. > > Section 2. That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design. This? > [@](#): > > SECTION 2 > > People source of power. > That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient. #3 > [@](#): > > ARTICLE II > DECLARATION OF RIGHTS > Section 1. Popular sovereignty. All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. > > Section 2. Self-government. The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary. > > Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities. > > Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. I fear it is simple-minded slavish devotion to **Plenary Power of The State** that will cost us our freedoms as much as anything. Perhaps, though, that’s the _Will of the Majority_. Resistance is Futile! You will assimilate. ---
**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:** [December 6, 2004, 3:51pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/373 "2004-12-06T15:51:46Z")
Missouri, Alabama, and Montana, respectively. ---
**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:** [December 6, 2004, 4:02pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/374 "2004-12-06T16:02:31Z")
Here’s my quick take: While a vast majority of the founding fathers thought that a democratic republic was the way to go, and that the “consent of the governed” argument was very persuasive, many of them also realized that the majority could, and in some cases do, act to the great detriment to the minorities. To think that the founding fathers would have been taken aback by a court striking down a legislative action that clearly violates the Bill of Rights is, in my opinion, nonsense. They realized that one of the major problems with a democratic republic is that the majority could use their power to limit the rights of the minority. In response to that concern, the founding fathers added the Bill of Rights. It was not meant to stand on it’s own, with the only check on a violation being the legislatures own conscience. As James Madison stated: “it is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of society against the injustice of the other part.” It strikes me that, just as happened with race in this country, bias against sexual orientation is the tyranny of the majority against the minority. The “desire to harm a politically unpopular group” is never a legitimate reason for enacting legislation. Protecting the rights of the minorities in this country is one of the most important roles the judiciary can take. Now, I know that the “method” the Courts have developed to do this noble cause is imperfect, at best. But the disdain shown to Substantive Due Process, and the issues of federalism, should not blind one to the propriety of the judicial action. Substantive Due Process and Equal Protection analysis are poor tools, but they have been used to accomplish the worthy goals of protecting the rights of the politically unpopular. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [December 6, 2004, 6:04pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/375 "2004-12-06T18:04:44Z")
> [@Homebrew](#): > > Plenary power, eh? All states have Constitutions that grant _them_ certain powers and limits their authority. Governmental power comes from people, not from above. I’m not sure what you intend to prove by this. The “plenary police power of the state” is of course defined in each state by the way the citizens choose to structure their state government. I’ve never said that state governments are the ab initio source of legitimacy or power. It is of course the people who are being governed whose consent entrusts some of this power to the state (and the states, in turn, entrust a small amount to the federal government). But from the perspective of judicial activism, which we’ve been discussing largely in the context of federal judges overturning legislation enacted by the (legislatures of, or by referenda in, or by other locally-chosen procedure by) the states, it doesn’t make a difference whether the plenary police power is exercised by the state citizens at large, or whether they’ve deemed it more practical to entrust some of that police power to a state government under the state constitution. The point is that however the state arrived at that law, the law presumptively expresses (and properly reflects) the plenary police power of that state. If the state citizens feel that the state government has improperly usurped or used or invoked the police power in a case in which the state citizens did not intend to vest such power to the state, then their remedy is to go to the state supreme court, which should probably still be conservative about deeming facially-lawfully-enacted laws unlawful, but is far better suited to determining exactly how much of their at-large power the state citizens did delegate to the state legislature under the state constitution than is a federal judge in Washington, D.C. Thus, your suggestion that the plenary police power is a tool for large-scale subjugation of state citizens, rather than for enactment of their democratic desires, is without foundation because of your mistaken belief that state governments (legislatures) have no limits on exercise of this power, and that the power does not reflect and embody (and often flow directly from, as in the case of referenda establishing state laws) the state citizenry. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 6, 2004, 6:27pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/376 "2004-12-06T18:27:10Z")
> [@Huerta88](#): > > I’m not sure what you intend to prove by this. > > The “plenary police power of the state” is of course defined in each state by the way the citizens choose to structure their state government. I’ve never said that state governments are the ab initio source of legitimacy or power. It is of course the people who are being governed whose consent entrusts some of this power to the state (and the states, in turn, entrust a small amount to the federal government). > > But from the perspective of judicial activism, which we’ve been discussing largely in the context of federal judges overturning legislation enacted by the (legislatures of, or by referenda in, or by other locally-chosen procedure by) the states, it doesn’t make a difference whether the plenary police power is exercised by the state citizens at large, or whether they’ve deemed it more practical to entrust some of that police power to a state government under the state constitution. The point is that however the state arrived at that law, the law presumptively expresses (and properly reflects) the plenary police power of that state. > > If the state citizens feel that the state government has improperly usurped or used or invoked the police power in a case in which the state citizens did not intend to vest such power to the state, then their remedy is to go to the state supreme court, which should probably still be conservative about deeming facially-lawfully-enacted laws unlawful, but is far better suited to determining exactly how much of their at-large power the state citizens did delegate to the state legislature under the state constitution than is a federal judge in Washington, D.C. > > Thus, your suggestion that the plenary police power is a tool for large-scale subjugation of state citizens, rather than for enactment of their democratic desires, is without foundation because of your mistaken belief that state governments (legislatures) have no limits on exercise of this power, and that the power does not reflect and embody (and often flow directly from, as in the case of referenda establishing state laws) the state citizenry. This would be the ideal consequence of a well-ordered state government, it is true. In case you have not noticed, however, the process, as it is actually carried out these days, is that legislators choose their constituents by creative redistricting that preserves majorities amenable to reelecting them in each district, and then often vote in legislation favorable to the lobbyists who connect with them. Ergo, “representative government” is a pious fiction, which we might someday be able to convert back into the reality that it once was, but only as the consequence of a majority of Americans demanding accountability of their legislators at one time. And that, sadly, does not seem likely to happen. Further, your approach takes a very idealistic view of the legislators. Ideally, they would never do anything that was _ultra vires_ and infringing on the rights of a minority, regardless of the majority view. But _c’est rien_ – in every state one can point to instances where they have indeed passed acts that do in fact infringe on rights – possibly legitimately, perhaps not. But the question then arises, what is the legal recourse when a legislature has in fact infringed on rights, or it is so alleged by persons who feel their rights have been infringed upon. And that, sir, is precisely one major function of the courts. A judge – any judge – is honorbound, by his oath, to uphold “the law” in the greater, monolithic, abstract sense, by refusing to enforce against a defendant (or plaintiff, under certain circumstances) a regulation or statute which goes against the principles of “the law” as expressed in a more fundamental element of that law, e.g., the Federal or state constitutions, organic acts and Bills of Rights, etc. I personally have absolutely no problem with the idea that a municipality may permit the local Council of Churches to erect a creche in the public park to celebrate the Christmas season. However, this is seen by prevailing case law to effect an impermissible establishment of the Christian religion, and I must respect that interpretation of _the law_ – not the statute or local ordinance but the overarching Constitutional principle to which the statute or ordinance must conform. [Previous page](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565.md?page=18)