Judicial activism is a good thing, unless you disagree! And how long have we had it?

Great Debates
341

Put differently, your non-understanding of the law has at every juncture yielded to a calm and dispassionate explanation of the law [as it actually exists, warts and all] from Bricker and DCU. Your side, on the other hand, has with a notable exception or two, been ‘supported’ by repetition, obviously-untrained blurtations of your view of what the law “ought to be,” earnest-but-ignorant personal value statements, and other jurisdprudentially-negligible contributions.

As I’ve said before, we wouldn’t tell you how to build a bridge, or perform neurosurgery, or bake a tasty pizze pie, or mop the auditorium floor, or whatever it is you actually have been trained how to do. Pity you, in your un-knowledge of law, don’t feel constrained by the same courtesies, but to the contrary feel compelled repeatedly to declare victory over those who actually know whereof they speak.

342

Bricker, that was sarcasm of course. Would you prefer a warning whenever someone else engages in it, for your own clarification?

The positions stated by the Burger court (on a 5-4 vote, at that) that I mentioned are absurd on their faces. They are, however, the decisions that a court determined to find a particular result would be forced to announce.

They’re not last because they’re right, they’re right because they’re last. Poor or nonexistent arguments are not convincing because of their origin, even if they have the force of law.

EP: Bogus argument; EP applies unless there is a rational basis for it not to, and tradition is not rational even if it’s real. The concept that gay marriages would disorder our liberty is entirely unfounded as well.

SDP: You’re right.

Conclusion: It’s a fundamental right either way. Now let’s get on with it, people are hurting because we haven’t all recognized that yet.
No, btw, you have not answered the Loving question, obviously because you cannot defend it without either invoking the SDP principle you detest or acknowledging that same-race-only marriage was at the time considered implicit in the concept of ordered liberty. It would be nice to have you acknowledge that, but frankly the rest of us all know it by now.
Huerta88, the so-called arguments made by you and others on the anti-SSM side amount to little more than “That’s an argument because I’ve said so”, or “It’s true because there are court cases that say so, regardless of faulty or nonexistent reasoning”. It’s only fair to point that out, and to do so as many times as necessary until you come up with something both substantive and persuasive. But you know as well as I do that you cannot.

343

I’m “right” in applying existing case law.

If I were in a position to overrule existing case law, I’d have something different to say about SDP and the conclusion above.

344

Huerta88, the so-called arguments made by you and others on the anti-SSM side amount to little more than “That’s an argument because I’ve said so”, or “It’s true because there are court cases that say so, regardless of faulty or nonexistent reasoning”. It’s only fair to point that out, and to do so as many times as necessary until you come up with something both substantive and persuasive. But you know as well as I do that you cannot.
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Are we reading the same 300 posts?

(a) The inconstestable constitutional facts and jurisprudence that were not known to you and your confreres, but have been made known* through this thread:

345

Huerta88, the so-called arguments made by you and others on the anti-SSM side amount to little more than “That’s an argument because I’ve said so”, or “It’s true because there are court cases that say so, regardless of faulty or nonexistent reasoning”. It’s only fair to point that out, and to do so as many times as necessary until you come up with something both substantive and persuasive. But you know as well as I do that you cannot.
[/QUOTE]

Are we reading the same 300 posts?

(a) Let us provide a listing of the inconstestable very basic constitutional facts and bits of legal jurisprudence that were demonstrably not known to you and your confreres when this thread started, but that have been made known* through this thread:
(i) Parties often win in court by pointing out that their plaintif adversaries have failed to carry their burden of going forward (I seem to recall your astonishment when Bricker et al. pointed to F.R.C.P. 12(b)(6) and 56, of which you’d clearly never heard, and both of which allow defendants to establish victory based upon non-showings by plaintiff).
(ii) the difference between the federal and the state jurisprudential system;*
(iii) the fundamental difference between the Constitution’s tratement of federal legislation and its treatment of state legislation (the latter being presumptively correct)***
(iv) the difference between equal protection jurisprudence and substantive due process jurisprudence, and how each works;
(v) the levels of scrutiny employed in constitutional jurisprudence (rational basis, intermediate scrutiny, strict scrutiny), and why nothing higher than rational basis has ever been applied to “sexual preference” laws;
(vi) the level of showing required to establish a rational basis, under existing case-law;
(vii) the non-applicability of the Establishment Clause to “SSM,” based upon the relevant test’s elements;
(viii) the fact that the Constitution’s limits on federal government are radically different from any limts on state government action;
(ix) fill in the blanks as to constitutional issues about which you know, well, nil.

Okay, on the other side of the ledger:

(b) The number of constitutional issues or jurisprudential facts as to which you have informed the “anti judicial activists” among us of anything of consequence:


0

Yeah. So that’s where we stand, with the people who actually understand how law operates and is constituted on one side, and you, with your vigorous and bizarre declarations of “legal victory,” on the other.

How do you reckon this as a victory, on constitutional grounds, again? Surely, you don’t deny that you and your allies have had to be educated from the ground up on law 101 and Constitution 102? Yet you are confident enough to declare that the embarrassing (to you) posts demonstrating your innocence of any legal understanding are proof of the absence of any “substantive and persuasive” argument against your position? What arrogance!

But of course, your position is founded in arrogance, and you’ll not disprove this. Basically, you submit that a “right” never recognized by any court, legislature, or populace, is not only proper, but self-evidently so. Only a moron could think otherwise.

Inherent in your view is the notion that you, and five members of the Supreme Court, should be able to trump the collective wisdom of 250 million Americans and their representatives and predecessors. Fine: You are (on your premise, which presumes your inherent moral superiority), entitled to veto power over a quarter billion (hey, why not a quarter trillion?) people?

My views are much more modest. At worst, my non-acitivist rule would lead to 4,000,001 state residents prevailing over 3,999,099 other state residents (with state courts as a remedy for any provision violating state law).

But that’s all mooted, as you’ve declared victory already.

Yeah.

346

Huerta88, speaking as one of “the other side”, I’m going to have to take issue with your assertion of blanket ignorance and total lack of argument on my part. Whilst some folks here are indeed not well-versed in various legal details, this is hardly a universal condition. And your earlier decree that only lawyers should be allowed to opine on legal matters is particularly laughable. In point of fact, this thread is not actually about the law, but about what constitutes judicial activism, and how laws should be interpreted. These are not, as I had to painstakingly explain to Dewey, legal questions but rather meta-legal questions. They are not, and cannot be answered by examining the law. They are philosophy of law issues. Which means, if we’re going to go with this ridiculous appeal to authority, that only those with philosophy degrees ought to be opining, which if I’m not mistaken leaves me as the only valid participant in the thread.

I trust it’s clear that the preceding is a reductio, not a serious statement.

In any event, thus far I’m the only one who’s presented any argument whatsoever for a jurisprudential philosophy in this thread. Dewey apparently believes that “self-governance”, by which he means straight majoritarianism, is a self-evident starting point, but has said nothing whatsoever to convince us of that. You haven’t even done that much, but have merely assumed Strict Constructionism and pontificated on the implications thereof. That’s all irrelevant to the question of what constitutes judicial activism, however. Only if strict constructionism is the only reasonable view of jurisprudential philosophy can one conclude that an application of any other approach constitutes judicial activism, as you seem to be asserting. Hence far in this thread and others, Dewey has established that it is a reasonable view, but has presented no argument that would establish it as the only reasonable view, or even as more reasonable than alternatives. You have not even done this much. So you might want to stop gloating.

347

The Founding Fathers did not fight the Revolution to substitute for the tyranny of George III’s Ministers the tyranny of homegrown despots. They fought for freedom and for limited government within a guarantee of natural rights – the French encyclopedists and their natural rights philosophy being the dominant political and social philosophy of the time. (Several Americans, such as Paine and Franklin, were among those contributing to the intellectual climate that defined.)

The results of the Civil War and the advent of the New Deal in 1933 led to aggrandizement of the powers of the Federal government, and its assertion of more authority over the decisions of the states. But in a very real sense, there has never been a time when the majority of Americans were prepared to presume that government beneficiently extended rights to them – instead, they saw it as guaranteeing the rights they had, and would accept others asserting rights not among those they themselves were interested in claiming because of an innate sense of fairness – “in his/her shoes, I’d claim the same thing.”

Hugo Black was a strict constructionist – he saw the guarantees of rights as absolutes. The modern philosophy that only those rights explicitly spelled out are guaranteed and government has power to do everything not explicitly prohibited it – the Federal government where there’s an explicit delegation of power to it, and the states in all other cases – is an aberration against the classic stance of freedom.

Dewey, Bricker, and I agree on several perspectives, including the idea that there has been massive abuse of the interstate commerce clause, and that the concept of substantive due process can easily be abused (cf. Lochner). But we disagree strongly on the question of what rights the Constitution guarantees – and I claim the historical high ground; their POV is founded on a statist philosophy that has been distasteful to most Americans historically.

348

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?

349

Of course, that’s all true. But at the same time, the Founding Fathers didn’t fight the Revolution so that everyone could do what they wanted. Even after the adoption of the Constitution, states had laws that we would consider really restrictive of personal freedoms. States had laws against obscenity, against adultery, against fornication, against sodomy. Corporal punishments, like flogging, branding, and mutilation were common. The death penalty was imposed frequently, for a wider variety of crimes than it is now. The adoption of the Constitution and Bill of Rights didn’t change any of that. All of those laws were seen as appropriate restrictions on liberty at the time. The Bill of Rights wasn’t even seen as applying to the states until the 14th amendment was passed.

So, while you’re right that the founders did believe in freedom, limited government, and natural rights, they also had a much more restricted view of what that meant than a lot of people do today.

350

Hear, hear!

The object of the Constitution was to form a government that would carry out the aims as stated in the Preamble for forming that government in the first place.

I don’t believe that the purpose of interpretation of the laws and the Constitution is to adhere to a method currently favored by some lawyers.

Yes, a certain amount of stability is desirable in the law so that people know when they are on the right side of the line. However we have accomodated some pretty drastic changes to the law. The idea that the Supreme Court has the final say on what the Constitution means is probably the first. However, the idea of human beings as property was overturned, at great financial cost to those who had “owned” such property and the great human and material cost of a civil war. The idea that publicly owned and paid for facilities could be segregated by race was overturned again with a great cost and upheaval which is still going on, but in my view that was and is worth it.

Yes, judicial activism can be overdone. So can judicial inaction; legislative inaction; executive inaction and on and on. In the end, good or bad government depends upon the intentions of those doing the governing and not upon written declarations no matter how nobly intended.

I return to my orginal statement. As long as judicial activisim enlarges individual liberty without endangering the common defense, I have no quarrel with it. The fact that it sometime disrupts domestic tranquility doesn’t bother me much. Some forms of smug domestic tranqulity need to be disrupted.

351

That’s the point, though, isn’t it? What if you disagree with the forms of domestic tranquility that are disrupted (you did say “some”)? Even if you agree, someone else will certainly disagree. The point is that laws should be made only by the consent of the governed–or so the constructionist would argue. “Just” judicial decisions (I would place Lawrence in this realm) that defy the will of the governed despite no constituional basis for doing so ultimately undermine the democratic process.

Or do I misunderstand you? It seems to me you are asserting a variation of, “I agree with any judicial activism that results in an outcome I agree with, but not the other kinds.” You can see the fault with this logic, right?

352

Well, then, let’s see you say why. You’ve been rather forceful about stating what equal protection is and is not, and should be and should not, based entirely on readings of case law. You’ve been shown cases, based on your own examples, of EP cases being decided based on result-driven reasoning, but you will still not even call those judicial activism much less decry it, a concept you claim to abhor as much as you abhor SDP.

And the FF’s were under no illusions that the Constitution they adopted was pure and perfect and would guide the nation forever. They knew it was not only a statement of the higher principles that they did understand needed to be lived up to even if real humans usually fall short; they knew it was a political compromise that represented all they could get done at the time, and hoped it would be amended and revised to reflect the changes they knew would come. Not only would they probably be surprised to see it still in effect after all this time, but they’d most likely be astounded to find their intentions derived from late-18th-century social understandings be divined and interpreted and considered the ultimate authority by anyone. Yet that is an influential school of thought even today.

gorsnak, another plaudit from here. You mentioned Dewey, and I’ll add that he has been just as forceful in Second Amendment debates that the first half of that single sentence should be read as if reading a contract, not a Constitution. That view is of course as inappropriate as that of other apparent lawyers here insisting on discussing only what case-law decisons are instead of how they got to be that way or how they should have been decided. It is, as you note, more than a bit tiresome, and it’s more than a bit worrying to see the principles that guided the Constitution, imperfect as it is, be dismissed as irrelevant or ignored completely.

353

So you’d be in favor of dispensing with courts altogether and having every case decided by majority vote of the population? That’s where you’re headed with that. Or do you acknowledge that the democratic process sometimes needs overruling in the name of justice? You call Lawrence a just decision; why?

354

You misunderstand. If a decision enlarges others’ freedom it also enlarges mine or at the least doesn’t diminish it.

Sure, even if I agree some else will disagree and if I disagree someone else will agree. So what?

The “consent of the governed” is a catch phrase generality that only means to me that governments shouldn’t be imposed upon people, they should decide for themselves what form of government they want. I’m not sure that laws being made only by the consent of the governed is a useable condition. As you point out, people with disagree in all cases. An example is the prohibition of the sale of alcoholic drinks. Most people disagreed, but many agreed and still do.

Yes, I would disagree with judicial decisions, activist or not, that disrupt domestic tranquility that I value, but I can go along with them. I’ve managed to swallow some court decisions that the US has the right to detain people on mere suspicion of terrorist “connections” even though I think they are wrong and will be ultimately shown to be so.

The point is I don’t have to be elated over everthing that courts or legislatures or executives decide to do. As long as liberty is enlarged without endangering the common defense I can go along. Societies work on consensus and not upon unanimity.

355

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. I agree with this sentiment:

I believe that overriding the law provides a short-term benefit–as in Lawrence, which eradicates a terrible law. But long-term, it still subverts the democtratic process. 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. It’s not fair, not in the long-term. Our pact in this society is that laws will be established via a democratic process, not via the “wisdom” of a select group of people. That is a slippery slope I prefer to avoid.

Yes, the democratic process shouldn’t be all-powerful. Where it violates a constitutional right, for example, it ought to be overruled. Lawrence is “just” in a personal sense for me. I believe consenting adults ought to be able to do as they please (as it relates to the activity covered in Lawrence). But I also believe that one of the obligations of our form of government is that we accept that majority rule may not produce the laws we agree with, not in every instance.

356

Yes, and in our form of government, the legislative branch (peopled by duly elected representatives) is the one that passes laws, not the judiciary.

I don’t know what to say other than, I disagree.

357

:rolleyes:

Not to hijack, but I’ve argued in the past that preamble text should be read as, well, preamble text. The Preamble to the main body of the Constitution is not a source of positive law, either.

358

How can it be a useable method of enacting laws if, as you yourself agree, “the governed” disagree among themselves?

Am I the only one to believe that when the writers of a document explicity write down their reasons for writing it that those reasons should be a strong determinent as to how the document is subsequenty interpreted?

359

“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. :wink:

360

To clarify, I do not suggest that someone has to be a lawyer to argue on these points. I’ve never held myself out as, nor relied for authority upon, being a practicing lawyer. I assume Bricker and DCU are admitted lawyers, but I’ve never seen their sheepskins and their arguments wouldn’t be any more or less convincing to me if they turned out not to have them. My eighth-grade civics teacher never set foot in a law school classroom, but knew more about judicial history than some lawyers I know, and I’d respect his opinion on jurisprudence more than theirs. The problem isn’t that Elvis doesn’t have a law degree; it’s that, based on the statements manifested here, he’d have struggled to pass my eighth grade civics class. Believe me, credentialism or appeal to authority strike me as problematic, not least because both can be used to justify, well, judicial activism as well.

And yes, not everyone here is as out-of-touch on the basics of how law works as is Elvis – but 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. With respect to the OP, the entire thread started with a basic misconception, viz., that “neocons” were wrong to be all up in arms about judicial activism – when the opposition to judicial activism has very little to do with neocons and their foreign-policy-oriented agenda.