# 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:** 20\ **Page:** 2
**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:** [November 19, 2004, 6:12am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/21 "2004-11-19T06:12:38Z")
> [@Dewey Cheatem Undhow](#): > > “You people”? Who the hell are you, Ross Perot? “You people” who argue that judicial activists create rights not specifically “granted” in the Constition. You must not be a trial lawyer or you would have better control of your emotions. And it does seem to me that the idea that the Constitution grants rights is an outmoded hangover from the days when the sovereign granted his subject rights. I think the modern idea is that the people have all the rights by virture of being people and they can only be limited on grounds of public safety, common defense or domestic tranquiity. > [@](#): > > > [@David Simmons](#): > > > > Originally Posted by David Simmons > > The Constitution enumerates the powers given to the federal government and by extension in the matter of civil rights to the states. > > The first part of this sentence is correct. The second part is nonsense. I thought I remembered that the US Constitution’s Bill of Rights was extended to the states sometime in the 1950’s. And so the “penumbra” to me would be that if the rights enumerated by the Bill of Rights are extended to the states then the 9th Amendment which protects those rights not enumerated is included. I’m interested that whenever judicial activism is brought up the subject immediately jumps to abortion in many instances. No one ever mentions the Supreme’s many extensions of the Interstate Commerce clause into some questionable areas. So maybe it’s abortion more than activism that is the burr under the saddle. This isn’t a debate any more it’s a harangue. We are never going to see this thing the same way. You seem to want people to have only those rights that the various governments in their magnanimity are willing to grant them I don’t, and won’t agree. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [November 19, 2004, 6:23am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/22 "2004-11-19T06:23:27Z")
“Strict construction” and “judical activism” are unrelated concepts. The first is a method of interpretation and the other is a method of applying interpretation. Strict constructionists interpret the Constitution as they believe it was intended. Activist judges actively make changes to settled law based on their particular brand of interpretation. Personally, I think original intent is a sham. The challenges of modern society are beyond the imagination of people who died 2 centuries ago. Resolving today’s legal questions by trying to determine their opinion makes about as much sense to me as attempting to divine the answer from sheep entrails. And with much the same result: the prophet conveniently tends to find exactly the answer they went looking for. ## I am also against judicial activism. Completely against it. I say that if settled law exists a judge should follow it. Period. Only if there is no precedent should a judge apply their favored method of interpretation. As far as I’m concerned this differs from those who merely claim to oppose judicial activism but would overturn decisions they don’t like such as _Roe v Wade_. Sure it was a bad decision but now it’s settled law none the less. If conservatives want to overturn it they should try to amend the Constitution. It’s happened before when judges got too big for their britches, the first time in [1794](http://press-pubs.uchicago.edu/founders/tocs/amendXI.html). - ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [November 19, 2004, 6:30am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/23 "2004-11-19T06:30:39Z")
> [@](#): > > **John Mace** : It’s not a matter of interpretaion, but of inventing stuff that simply isn’t there. Kind of like having a right to bear AK-47s? **jgroub** , welcome to SDMB. Good question. I think the general stipulation is that you can criticize the _content_ of someone’s post, but not the poster herself. ---
**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:** [November 19, 2004, 6:40am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/24 "2004-11-19T06:40:04Z")
> [@Dewey Cheatem Undhow](#): > > No, it hasn’t. The listing of rights in the Bill of Rights does not prevent the establishment of other rights in other places – such as federal statutory law and state constitutions. Indeed, the ninth amendment guarantees that these other sources of rights are valid even in the face of the specific enumerations of rights in the federal constitution. With due respect, you’re completely missing the point (intentionally?) of both Wilson and **David Simmons**. Neither are concerned about it not being possible to enumerate further rights by means of state constitutions or legislation. They are concerned with the possibility that people will adopt precisely the view you espouse, i.e., that legal rights do not exist unless they are specifically enumerated. I will not bother to make an argument either way here, not least because I’m not entirely convinced either way myself, but it does nothing to further the discussion to talk past each other like this. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [November 19, 2004, 7:44am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/25 "2004-11-19T07:44:10Z")
> [@2sense](#): > > … > I am also against judicial activism. Completely against it. I say that if settled law exists a judge should follow it. Period. Only if there is no precedent should a judge apply their favored method of interpretation. > … This raises the eternal question of whether the case before the judge is _distinguishable on the facts_ from the supposed precedent. The answer is that it always is. So judges have latitude so far as precedents are concerned. Helpful but not necessarily binding if the judge is so minded. As others have wisely pointed out earlier, law is not mechanical, certainly not insofar as cases that come before judges are concerned. Accordingly “strict constructionism” is a sham based on an impoverished view of the law. “Judicial Activism” is similarly painted thicker and more distinct than it really is. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [November 19, 2004, 8:14am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/26 "2004-11-19T08:14:09Z")
> [@sevastopol](#): > > This raises the eternal question of whether the case before the judge is distinguishable on the facts from the supposed precedent. > > The answer is that it always is. So judges have latitude so far as precedents are concerned. Helpful but not necessarily binding if the judge is so minded. Judges can spout any crap they think they can get away with if they are so minded. So what? My beliefs about judicial activism are just that: my beliefs. They don’t have any effect on what judges can or can not do. Judges decide cases. And yes, they decide them on a case by case basis. These facts do nothing to change my belief. If a ruling overturns settled law then it is an activist decision. Roe v Wade, for instance. Or replacing it with a ruling that the unborn are now to be considered full citizens. > [@](#): > > \*As others have wisely pointed out earlier, law is not mechanical, certainly not insofar as cases that come before judges are concerned. > > Accordingly “strict constructionism” is a sham based on an impoverished view of the law. “Judicial Activism” is similarly painted thicker and more distinct than it really is.\* ## I have defined “judicial activism” as when judges “actively make changes to settled law”. While there is naturally some ambiguity there I don’t think that’s painting it too thick. The courts have subsequently tinkered with Roe v Wade without upsetting the national status quo. Nor do I believe there is anything mechanical in how the law works. That’s why I roll my eyes at the term “Rule of Law” . If law were mechanical then such a thing would be possible. But we know it’s not. Only people can rule. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 19, 2004, 2:19pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/27 "2004-11-19T14:19:10Z")
> [@John Mace](#): > > One thing “you people” seem to forget about is that any authority not given to the feds in the constitution is retained by the states. Wrong again. All power resides in the people. The U.S. Constitution states what powers are given to the Federal Government. The various state constitutions state what powers are given to each of them. Any powers not specifically given to the state remain with the people. Further, the specially protected rights enumerated can’t be violated by either state nor federal government. > [@](#): > > WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, **deriving their just Powers from the Consent of the Governed** , that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness (bolding mine). ---
**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 19, 2004, 2:25pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/28 "2004-11-19T14:25:23Z")
> [@Homebrew](#): > > Wrong again. All power resides in the people. The U.S. Constitution states what powers are given to the Federal Government. The various state constitutions state what powers are given to each of them. Any powers not specifically given to the state remain with the people. Further, the specially protected rights enumerated can’t be violated by either state nor federal government. > > (bolding mine). You quoted the Declaration of Independence, not the Constitution. The former has no actually standing in any legal capacity. Unless, of coures, you can show me some legal ruling that used as its basis the DoI… But I don’t really disagree with your statement, only that “the people” and “the states” are pretty much the same thing-- ie, NOT the federal government. ---
**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:** [November 19, 2004, 2:26pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/29 "2004-11-19T14:26:40Z")
> [@Gorsnak](#): > > With due respect, you’re completely missing the point (intentionally?) of both Wilson and **David Simmons**. Neither are concerned about it not being possible to enumerate further rights by means of state constitutions or legislation. They are concerned with the possibility that people will adopt precisely the view you espouse, i.e., that legal rights do not exist unless they are specifically enumerated. > > I will not bother to make an argument either way here, not least because I’m not entirely convinced either way myself, but it does nothing to further the discussion to talk past each other like this. It seems absurd to me to think that the people would establish a government on their sole authority and then believe they couldn’t do something unless that same government gave them specific authorization. ---
**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 19, 2004, 2:36pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/30 "2004-11-19T14:36:04Z")
> [@David Simmons](#): > > It seems absurd to me to think that the people would establish a government on their sole authority and then believe they couldn’t do something unless that same government gave them specific authorization. It seems absurd to me to think that people would proscribe strict limits on a government and then believe the government could do somehting that those same people did not authorize. Are we talking about the same thing??? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 19, 2004, 2:45pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/31 "2004-11-19T14:45:29Z")
The first significant instance of judicial activism in the United States occurred in 1803, when Chief Justice Marshall declared in _Marbury v. Madison_ that “It is emphatically the province and duty of the judicial department to say what the law is.” There is no basis for judicial review of the constitutionality of a law in the Constitution. Sua ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 19, 2004, 3:13pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/32 "2004-11-19T15:13:10Z")
> [@Homebrew](#): > > No, you’re wrong. The historical record shows that the founders considered that citizens are free to do as they please. Government has no power to limit _anything_ unless that power is specifically given. The Articles of the Constitution spell out what powers the government has. Attempts to outlaw, for instance, abortion fail because there is nowhere that the government is given the power to do so. You left out only one word. But it’s an important one. “The Articles of the Constitution spell out what powers the **federal** government has.” The states have plenary power otherwise. Find me the portion of the Constitution in which the State governments are “given the power” to regulate highway safety, or larceny, or public nudity. “There is nowhere that the government is given the power to do so! All those laws are without basis and (here we go, kids) UNCONSTITUTIONAL!” Obviously, not. This is pretty basic stuff you’re misunderstanding. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 19, 2004, 3:15pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/33 "2004-11-19T15:15:56Z")
> [@SuaSponte](#): > > The first significant instance of judicial activism in the United States occurred in 1803, when Chief Justice Marshall declared in _Marbury v. Madison_ that “It is emphatically the province and duty of the judicial department to say what the law is.” > > There is no basis for judicial review of the constitutionality of a law in the Constitution. > > Sua I’ve tried not to open this debate, because it tends to make people’s heads explode, but there is a serious argument that the Framers did not anticipate _Marbury_ or judicial review, at least not in the forms they’ve developed into, and would have written the Constitution differently if they had. “But what else would the courts be for if not reviewing the constitutionality of laws” Handling “cases and controversies,” like who owns Whiteacre or whether Jones’s patent is valid or did Smith commit that murder. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 19, 2004, 3:19pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/34 "2004-11-19T15:19:38Z")
> [@Homebrew](#): > > Wrong again. All power resides in the people. The U.S. Constitution states what powers are given to the Federal Government. The various state constitutions state what powers are given to each of them. Any powers not specifically given to the state remain with the people. Further, the specially protected rights enumerated can’t be violated by either state nor federal government. > > (bolding mine). Your quote of the Declaration of Independence is inspirational, and irrelevant to this debate. Yes, the U.S. was founded out of the “compact theory” of government. No, the “consent of the people” is not directly relevant to the adjudication of any constitutional dispute. The “consent of the people” is expressed through their state governments. Otherwise, you could never arrest anyone unless they “consented.” Do you think the compact theory has been observed at a base level through U.S. history? Some states thought that they could leave the U.S. because the compact had failed and they no longer consented to the previously-advantageous coalition of states. Some other states disagreed. Whose constitutional interpretation proved superior at Antietam? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 19, 2004, 3:22pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/35 "2004-11-19T15:22:00Z")
> [@John Mace](#): > > You quoted the Declaration of Independence, not the Constitution. The former has no actually standing in any legal capacity. Unless, of coures, you can show me some legal ruling that used as its basis the DoI… I know what I quoted. The point is to demonstrate what the Founders considered the source of rights. You, **Dewey** and others claim that our rights are granted to us by the government. Strict Constructionalists argue that we have to look at the plain meaning and original intent. Well, the plain meaning and the obvious intent of the authors of the Constitution is that it gave certain rights to the government but all other rights reside with the people. Your claim that the states and the people are the same thing is bizarre. If that were so, then why do states have constitutions that describe their powers? Why would the tenth mention both states and people? > [@](#): > > There is no basis for judicial review of the constitutionality of a law in the Constitution. While that statement is true at it’s face, it’s meaning is balderdash. You say this as support for the idea that _Marbury v. Madison_ was judcial activism. It is clear that the idea that the judiciary interepreted the meaning of laws was existent before the Constitution was written. It was a given that did not need spelled out because it was inherent in the idea of a limited government. > [@Article III](#): > > The judicial power shall extend to all cases, in law and equity, arising under this Constitution … The power to review whether a law was constitution was understood to be a “judicial power” as evidenced by other writings by the Founders: > [@Federalist 78](#): > > The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. **Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.** Without this, all the reservations of particular rights or privileges would amount to nothing. (bolding mine) > [@Federalist 81](#): > > I admit, however, that the Constitution ought to > be the standard of construction for the laws, and that wherever there is > an evident opposition, the laws ought to give place to the Constitution. > But this doctrine is not deducible from any circumstance peculiar to the > plan of the convention, but from the general theory of a limited > Constitution; and as far as it is true, is equally applicable to most, > if not to all the State governments. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 19, 2004, 3:28pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/36 "2004-11-19T15:28:11Z")
> [@2sense](#): > > Personally, I think original intent is a sham. The challenges of modern society are beyond the imagination of people who died 2 centuries ago. Resolving today’s legal questions by trying to determine their opinion makes about as much sense to me as attempting to divine the answer from sheep entrails. And with much the same result: the prophet conveniently tends to find exactly the answer they went looking for. This is awful! Dead white males from 220 years ago are controlling what we do today! The Constitution is hopelessly outmoded! Dead hand control! No solution but to read imaginary rights into the document that those irrelevant geezers actually wrote! Fortunately, no. You’ve read the Constitution? Try it – it’s very short, and sometimes helpful in resolving constitutional disputes. Here, for instance, where Article V presciently provides a clear, exact, and straightforward mechanism for amending the Constitution whenever the original intent of the original Framers becomes out of date or insufficient to meet society’s needs. Then, that amendment will be construed by its original intent. If the sum of the original Constitution, plus the amendments to date, don’t meet our needs – you can amend again, and we’ll construe that further amendment pursuant to your original intent, as of today, when we amend it. False dilemma solved! ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 19, 2004, 3:28pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/37 "2004-11-19T15:28:46Z")
> [@Huerta88](#): > > You left out only one word. But it’s an important one. “The Articles of the Constitution spell out what powers the **federal** government has.” The states have plenary power otherwise. Not so. The power lies with the people. That’s why each of the states also have constitutions that describe their powers. > [@](#): > > Find me the portion of the Constitution in which the State governments are “given the power” to regulate highway safety, or larceny, or public nudity. “There is nowhere that the government is given the power to do so! All those laws are without basis and (here we go, kids) UNCONSTITUTIONAL!” You’d have to read the state constitutions. That’s because its the U.S. Constitution for the **Federal** government. The states have their various constitutions that spell out _their_ respective powers. That’s why Arkansas’ Supreme Court could rule that the state sodomy law violated the Arkansas Constitution despite _Bowers_. ---
**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:** [November 19, 2004, 3:34pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/38 "2004-11-19T15:34:53Z")
> [@2sense](#): > > If a ruling overturns settled law then it is an activist decision. Roe v Wade, for instance. Or replacing it with a ruling that the unborn are now to be considered full citizens. _Brown v. Board_ overturned the long-settled law decided under _Plessy v. Ferguson_. And _Lawrence_ overturned _Bowers_. By your lights, do you consider those decisions activist in nature? > [@Homebrew](#): > > Wrong again. All power resides in the people. As John Mace points out, your quoting the Declaration, not the Constitution, and “the people” exercise their power via state and local government and via referendum processes. But I just wanted to note the delicious irony of you bolding a part of the Declaration that actually argues strongly in favor of strict constructionism. The principal thrust of strict constructionism is that a just government derives its legitimacy from the consent of the governed – that the powers and limitations on any such government must be approved by the people. That’s why we have a constitution. That’s why we have an amendment process. That’s why it is improper for judges to effectively make their own preferred changes from the bench. > [@Gorsnak](#): > > With due respect, you’re completely missing the point (intentionally?) of both Wilson and David Simmons. Neither are concerned about it not being possible to enumerate further rights by means of state constitutions or legislation. They are concerned with the possibility that people will adopt precisely the view you espouse, i.e., that legal rights do not exist unless they are specifically enumerated. With due respect, I think you and Simmons are misconstruing the concerns of the founders. They were looking to ensure rights could be protected in ways independent of the constitution, not that the judiciary would have free-ranging authority to create rights out of thin air. There is no such thing as a right without a remedy. You can bleat all day long about your right to free speech, if you can’t enforce that right, you don’t have it. That’s the hard, cold truth of the matter. Anything else is simply empty rhetoric designed to push emotional buttons. > [@Kel Varnsen - Latex Division](#): > > Why are you limiting those that oppose “activism” to strict constructionists? There are plenty of people who oppose “activism” that are not strict constructionists. Would you say strict constructionism is a pretty marginal viewpoint? Can you name some influential strict constructionists? In order: 1. Because strict constructionists, by definition, believe that the text and/or original intent should guide the constitution’s interpretation, as opposed to the personal viewpoints of individual judges. If you can come up with an alternative theory of interpretation that simultaneously limits the ability of judges to simply decide cases according to their personal policy preferences, name it. 2. Name one, and describe their jurisprudential philosophy. 3. It is a minority view. It is not marginal. 4. Antonin Scalia springs to mind for the textualist school. I’d say he’s pretty influential, seeing how he’s 1/9 of the highest judicial power in the country. ---
**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:** [November 19, 2004, 3:39pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/39 "2004-11-19T15:39:02Z")
> [@Homebrew](#): > > Not so. The power lies with the people. That’s why each of the states also have constitutions that describe their powers. So you agree that the federal constitution does not enumerate the powers of the states, and that the states can legislate however they want without violating the federal constitution so long as the federal constitution does not prohibit a given piece of legislation? In short, do you agree that, _with respect to the federal constitution_, the states have plenary authority to legislate absent a specific prohibition? ---
**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:** [November 19, 2004, 3:46pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/40 "2004-11-19T15:46:19Z")
> [@Dewey Cheatem Undhow](#): > > With due respect, I think you and Simmons are misconstruing the concerns of the founders. They were looking to ensure rights could be protected in ways independent of the constitution, not that the judiciary would have free-ranging authority to create rights out of thin air. > > There is no such thing as a right without a remedy. You can bleat all day long about your right to free speech, if you can’t enforce that right, you don’t have it. That’s the hard, cold truth of the matter. Anything else is simply empty rhetoric designed to push emotional buttons. Ah, but we never attributed the view to the founders generally, just to one in particular. Anyways, the idea is certainly not that the judiciary creates rights, but that it recognizes them. As usual, it’s as if one of us is viewing things through an inverted prism. As for rights without remedies, that’s kind of the point. If Wilson’s view is the correct one to take, namely, that people have unenumerated rights, then the courts should be recognizing them and remedying their violations. And of course, it should also be noted that not every instance of ‘right’ in this thread need be refering to a legal right, in which case it’s absolutely not the case that there can be no such thing as a (non-legal) right without a remedy. I believe I posted an elaboration on this theme in Bricker’s recent ‘no right without a remedy’ thread. [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=1) [Next 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=3)