“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.
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.
“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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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?
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.
The power to review whether a law was constitution was understood to be a “judicial power” as evidenced by other writings by the Founders:
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.
Not so. The power lies with the people. That’s why each of the states also have constitutions that describe their powers.
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.
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?
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.
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.
In order:
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.
Name one, and describe their jurisprudential philosophy.
It is a minority view. It is not marginal.
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.
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?
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.