# Should judges demonstrate judicial restraint or judicial activism? **URL:** \ **Category:** Great Debates\ **Created:** [February 1, 2017, 3:32pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751 "2017-02-01T15:32:26Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2017, 4:13pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/101 "2017-02-03T16:13:40Z")
> [@Happy\_Fun\_Ball](#): > > Regarding Carrie Chapman Catt, all of the text of the Constitution until that time codifies a mans right to vote, not a woman’s. This was why the nineteenth was needed. You just quoted the Fourteenth’s equal protection clause. Where does it say “man?” ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 3, 2017, 4:29pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/102 "2017-02-03T16:29:40Z")
> [@Bricker](#): > > How do you know it exists? > > More specifically, how did you know prior to the Court’s decision? > > Did it exist in 1870? > > That’s precisely an example of legislating from the bench – declaring that a right exists in the Fourteenth Amendment to permit same-sex couples to marry, when essentially no one who voted to adopt the Fourteenth Amendment’s text in 1867 would have agreed. Where did the right come from? How can it exist when no one who voted for it would agree that’s what it did? Do women have a right to vote? Or is it simply legislated by the 19th Amendment? If we repealed the 19th, do you think the 14th would cover the right of women to vote? Or, since no one in 1870 thought that’s what they were passing, women _don’t_ have a right to vote, only an amendment that currently prevents them from being _prohibited_ from voting, but which could be repealed at any time? The 14th amendment says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. It doesn’t say _male_ citizens, _heterosexual_ people, or any _Christian_ person. It just says “citizens” and “person”. Are women not people? Are gay people not citizens? Now if a judge, assuming for this hypothetical that the 19th amendment didn’t exist, upheld women’s right to vote under the 14th, is that “legislating from the bench” or just applying the clear language of the amendment to the case at hand? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 3, 2017, 4:32pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/103 "2017-02-03T16:32:19Z")
> [@Bricker](#): > > Your view is certainly a possible one; you give the judiciary a role in discovering new applications of those principles. I am not sure I can back this up with FF quotes but I believe the FFs were not trying to write rigid rules. These were very smart and well educated guys. They wrote principles with the understanding they could not predict the future. They meant for the constitution to be flexible and not a rigid set of laws. Where they wanted things to be rigid and precise they were rigid and precise. They pored over that document obsessively. Apart from some commas in the second amendment that some think they got wrong (but probably didn’t owing to that obsessiveness) I doubt there is anything in there by accident. They were explicit where they wanted to be and left principles and guidelines for the future. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [February 3, 2017, 4:36pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/104 "2017-02-03T16:36:39Z")
> [@Bricker](#): > > You just quoted the Fourteenth’s equal protection clause. Where does it say “man?” > [@Fourteenth Amendment](#): > > Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the _ **male** _ inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such _ **male** _ citizens shall bear to the whole number of _ **male** _ citizens twenty-one years of age in such State. Emphasis mine. To be fair, it doesn’t say man, it says male, but I think it means the same thing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2017, 4:39pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/105 "2017-02-03T16:39:13Z")
> [@DrCube](#): > > Do women have a right to vote? Or is it simply legislated by the 19th Amendment? If we repealed the 19th, do you think the 14th would cover the right of women to vote? Or, since no one in 1870 thought that’s what they were passing, women _don’t_ have a right to vote, only an amendment that currently prevents them from being _prohibited_ from voting, but which could be repealed at any time? > > The 14th amendment says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. It doesn’t say _male_ citizens, _heterosexual_ people, or any _Christian_ person. It just says “citizens” and “person”. Are women not people? Are gay people not citizens? > > Now if a judge, assuming for this hypothetical that the 19th amendment didn’t exist, upheld women’s right to vote under the 14th, is that “legislating from the bench” or just applying the clear language of the amendment to the case at hand? It’s applying the language, to be sure. But what did the language mean to the people that approved it in the first place? Did they think they were approving the female vote? ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 3, 2017, 4:42pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/106 "2017-02-03T16:42:15Z")
> [@Bricker](#): > > So when did the federal Constitution acquire the law that forbid states from legislating against same-sex marriage? 1868, as I believe you mentioned yourself earlier. Just because the assholes in charge didn’t interpret it that way doesn’t mean that isn’t what the 14th says, in clear language. The chauvinists didn’t believe it applied to women either, yet the text clearly says “person” and “citizen”, not “male” or “heterosexual”. If they wanted to pass an amendment that protected straight people and not gay people, they could have done so. _They didn’t_. They had pretensions of magnanimity but in practice they came up short. Obergefell corrected that. Far too late, but it did so nevertheless. In the view of the five legal minds on earth whose opinions actually mattered in this case. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 3, 2017, 4:44pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/107 "2017-02-03T16:44:32Z")
> [@Bricker](#): > > Did they think they were approving the female vote? Did Trump voters think they were electing a man who would take away their access to health care? Did they think they were electing a man who would ban their family members from returning home from vacation? What you _think_ you are voting for and what you are _actually_ voting for are very often not the same thing. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 3, 2017, 4:51pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/108 "2017-02-03T16:51:40Z")
@Bricker: A question for you. Let’s pretend these words from the Declaration of Independence were in the US Constitution: “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.” Would you argue that today we should read that as only applying to men? Only US citizens and males over the age of 18 and, given the 3/5 compromise, probably not black men? I am not suggesting you are a racist or bigot. Just that that you would read those words and apply them in their literal manner. A manner that was held at the time of the writing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2017, 4:53pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/109 "2017-02-03T16:53:42Z")
> [@DrCube](#): > > Did Trump voters think they were electing a man who would take away their access to health care? Did they think they were electing a man who would ban their family members from returning home from vacation? > > What you _think_ you are voting for and what you are _actually_ voting for are very often not the same thing. The difference there is that the Trump voters can correct their error in four years. That’s the key difference: elected officials are always subject to the continuing approval of the electorate. Judges are not. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2017, 4:54pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/110 "2017-02-03T16:54:42Z")
> [@Whack-a-Mole](#): > > @Bricker: > > A question for you. > > Let’s pretend these words from the Declaration of Independence were in the US Constitution: > > “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.” > > Would you argue that today we should read that as only applying to men? Only US citizens and males over the age of 18 and, given the 3/5 compromise, probably not black men? > > I am not suggesting you are a racist or bigot. Just that that you would read those words and apply them in their literal manner. A manner that was held at the time of the writing. Would I argue as a judge? Or as a policy maker? ETA: And if as a judge, how should I decide a case involving the teaching of Creationism, when the Constitution now clearly rests on the actions of a Creator? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 3, 2017, 4:55pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/111 "2017-02-03T16:55:26Z")
> [@Bricker](#): > > Would I argue as a judge? Or as a policy maker? Judge. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 3, 2017, 4:58pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/112 "2017-02-03T16:58:50Z")
> [@Bricker](#): > > The difference there is that the Trump voters can correct their error in four years. That’s the key difference: elected officials are always subject to the continuing approval of the electorate. Judges are not. Is the supposition here that lifetime appointments leads to judicial activism? (really asking) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2017, 5:01pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/113 "2017-02-03T17:01:26Z")
> [@Whack-a-Mole](#): > > Judge. Then I’d probably say that they applied to white property owners, absent some other intervening law, because that’s what the voters approved. Look, if as a judge, I can decide that words changed, and thus facts changed, then I have power to rewrite law. If you want to give me that power, remember that I can start wielding it in ways you don’t like. Let’s table this discussion for four years, and you tell me in 2020 how happy you are at the judges’ power to legislate like that, after Trump’s multiple appointments are all seated. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2017, 5:02pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/114 "2017-02-03T17:02:28Z")
> [@Whack-a-Mole](#): > > Is the supposition here that lifetime appointments leads to judicial activism? > > (really asking) Yes. If we retain lifetime appointments we should normalize judicial restraint. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 3, 2017, 5:06pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/115 "2017-02-03T17:06:12Z")
> [@Bricker](#): > > The difference there is that the Trump voters can correct their error in four years. That’s the key difference: elected officials are always subject to the continuing approval of the electorate. Judges are not. If the legislature doesn’t like how the judge interpreted the pretty clearly written amendment they passed 150 years ago, they better repeal it and pass an amendment that is more explicit about sticking it to the gays. Since they haven’t, I’ll go ahead and assume the legislature agrees with the court’s interpretation. After all, they are our duly elected representatives. It’s their job to correct this sort of thing. Here’s what I see happening: Congress - “Here’s a law we’ve written” Court - “Okay, it clearly says X” Congress - “We didn’t mean that!” Court - “Well you shouldn’t have written it then”. Congress - “Judicial overreach! Legislating from the bench!” The issue is that legislators want to be seen as good guys. So they don’t explicitly say “this protective law only applies to straight white male Christians”, and hope that the general racism, homophobia, xenophobia and sexism of Americans will win the day. If they wanted to pass an explicitly racist, sexist or xenophobic law, they could have. But that would have jeopardized their reelection chances. So they didn’t. The courts can’t interpret the internal motivations of the specific legislators who voted on a law. They can only interpret the text. Want your legislators to be more explicitly homophobic? Write your congressman! Do it the legitimate way, through the legislature, by passing laws, not by denying the explicit words on paper and pretending that they don’t actually mean that. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 3, 2017, 5:12pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/116 "2017-02-03T17:12:56Z")
While not authoritative, I find this passage from Hannah Arendt persuasive: > [@](#): > > “The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.” My belief is that the freedom to marry or not marry whomever a person chooses is a pre-existing right. The constitution does not grant it, nor may it forbid it. While statutes may be created to infringe on this right, they merely violate it but do not destroy its existence. > [@UltraVires](#): > > Examples: > > 1. Free speech is a right. It is impermissible for a legislature to take that away by statute. > > 2. Riding a bicycle is not a right. If a legislature is silent, the riding a bicycle is permitted. If the legislature chooses to restrict bicycle riding, then you no longer are permitting to ride bicycles in the restricted manner. > > The question for Scalia in the Lawrence and Obergefell cases was: is the freedom at issue more like #1 or #2? @Bricker: I think you fall into the camp that this marriage right is more like #2 where others believe it is #1. Would any person in America believe they had a right to pursue happiness if they could not marry the person they loved? What would be more objectionable to most people - to be denied a vote in next November’s presidential election or to no longer have legal custody over their child or legal attachment to their wife or husband? Not a close call. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 3, 2017, 5:14pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/117 "2017-02-03T17:14:20Z")
> [@Bricker](#): > > Then I’d probably say that they applied to white property owners, absent some other intervening law, because that’s what the voters approved. > > Look, if as a judge, I can decide that words changed, and thus facts changed, then I have power to rewrite law. If you want to give me that power, remember that I can start wielding it in ways you don’t like. > > Let’s table this discussion for four years, and you tell me in 2020 how happy you are at the judges’ power to legislate like that, after Trump’s multiple appointments are all seated. There is very good evidence that using the male pronoun (men) is, in many cases, a placeholder to mean all humans and not strictly to mean adult males of the species. You think that is too far for a judge to decide? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 3, 2017, 5:15pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/118 "2017-02-03T17:15:37Z")
Judges should apply the law in the most just way possible that is consistent with the text of the law. Sometimes this will be according to the explicit text, sometimes it will be according to the intent of the writers of the law, sometimes it will be neither. If the legislature actually wants a less-just reading of a law, then the onus on them is to make the law sufficiently explicit as to exclude the more-just interpretation. If there is disagreement on what interpretation of a law is most just, well, that’s why we have judges in the first place. Is this system perfect? Of course not: It’s devised and implemented by imperfect humans. But it’s still better than a literalist or originalist system. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 3, 2017, 5:18pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/119 "2017-02-03T17:18:11Z")
> [@Bricker](#): > > Then I’d probably say that they applied to white property owners, absent some other intervening law, because that’s what the voters approved. > > Look, if as a judge, I can decide that words changed, and thus facts changed, then I have power to rewrite law. If you want to give me that power, remember that I can start wielding it in ways you don’t like. > > Let’s table this discussion for four years, and you tell me in 2020 how happy you are at the judges’ power to legislate like that, after Trump’s multiple appointments are all seated. You do have a point. I suppose you were disappointed in the Supreme Court overturning the Voting Rights Act, (Congress was wrong, we no longer need this law) However, I would think the Court should have been able to say prohibiting women from voting in 1900 was unconstitutional. Or that _Loving v. Virginia_ could have been decided anytime after the 14th amendment was passed. If\* Loving\* is okay, why not gay marriage? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 3, 2017, 5:21pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/120 "2017-02-03T17:21:30Z")
> [@Bricker](#): > > Yes. If we retain lifetime appointments we should normalize judicial restraint. Is there evidence for this judicial activism? I have no doubt there are some examples. I mean is there evidence that lifetime appointments are the cause? I am sort of with you but I think this is a tough point. Judges who have to worry about their job are beholden to those who give them their job which may not be ideal. Probably a good topic for another debate. [Previous page](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751.md?page=5) [Next page](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751.md?page=7)