# 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:** 7
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 3, 2017, 5:40pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/121 "2017-02-03T17:40:42Z")
> [@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 If we repealed the 19th, do you think the 14th would cover the right of women to vote?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a right to vote, only an amendment that currently prevents them from being _prohibited_ from voting, but which could be repealed at any time?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? Do children or even infants have the right to vote under your interpretation of the amendment? After all, they are “people” and “citizens.” Further, if you read section 2 of the 14th amendment, you can clearly see that your interpretation of section 1 is incorrect. In the SAME AMENDMENT, Congress contemplates a state not allowing a person to vote based upon race and sex. Reading these two sections together, your interpretation of section 1 is clearly wrong. ---
**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, 5:48pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/122 "2017-02-03T17:48:24Z")
Maybe we should start with this postulate: in a self-governed, representative democracy, you won’t always get your way. In fact, things you hold to be “good,” may be viewed as evil by others; things you believe evil are good in others’ eyes. So the point of a self-governed society is to rest ultimate decision all power in the voters, and in a representative democracy allow the voters to regularly select leaders to implement their will. Even if that will is something you passionately believe is wrong, or evil. Do you agree? ---
**Author:** ![Happy\_Fun\_Ball](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/happy_fun_ball/32/17664_2.png) [@Happy\_Fun\_Ball](https://boards.straightdope.com/u/Happy_Fun_Ball)\ **Post date:** [February 3, 2017, 6:07pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/123 "2017-02-03T18:07:01Z")
> [@Bricker](#): > > You just quoted the Fourteenth’s equal protection clause. Where does it say “man?” It doesn’t. From this it is clear to me that the equal protection clause applies to all citizens, not just men. What does this have to do with voting, women, and the nineteenth amendment? > [@k9bfriender](#): > > Emphasis mine. > > [QUOTE=Fourteenth Amendment, section 2] > 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. To be fair, it doesn’t say man, it says male, but I think it means the same thing. [/QUOTE] Oh, there it is, that pesky gender specifier. Right there in the text. No need to try to figure out the intent, we can just read it! Anyway, thanks **Bricker** for responding to my post, can you respond to this part? > [@Happy\_Fun\_Ball](#): > > I’m a little confused by your stance here, I thought you strict constructionists (I believe you have claimed this is your legal philosophy) didn’t believe in using the intent of the founders or legislators when interpreting a law, but instead use the words that are in the law. Yet here you are saying it was obvious the 14th amendment was all about race as that what was intended when the law says nothing of the sort: > > [QUOTE=The Fourteenth Amendment to the Constitution of the United States] > All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. I see nothing about race in here, why are you trying to imply that this is an amendment about racial equality when it says nothing of the sort. If the legislators of that time wanted to make the equal protection of laws apply to all races, but not to those of different religion or different sexes, wouldn’t they have put that text into the amendment?\ [/QUOTE] ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [February 3, 2017, 6:21pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/124 "2017-02-03T18:21:05Z")
> [@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. How does that square with the argument you brought up earlier?; > [@Bricker](#): > > No, no. The law has always been about creating a rule, and then applying that rule to new situations that arise. “Change,” does not involve circumstances like that; the arms of today are not different in character than the arms which the adopters of the Second Amendment knew. > > Now, one may argue that if only they had known, they never would have passed such language, but that’s the argument for legislative amendment. Why look strictly to the intent and knowledge of the situation in terms of **Whack-a-Mole** ’s hypothetical, but not when it comes to the 2nd Amendment? ---
**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, 6:48pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/125 "2017-02-03T18:48:14Z")
> [@Bricker](#): > > Maybe we should start with this postulate: in a self-governed, representative democracy, you won’t always get your way. > > In fact, things you hold to be “good,” may be viewed as evil by others; things you believe evil are good in others’ eyes. > > So the point of a self-governed society is to rest ultimate decision all power in the voters, and in a representative democracy allow the voters to regularly select leaders to implement their will. > > Even if that will is something you passionately believe is wrong, or evil. > > Do you agree? I will agree that it is true that we don’t always get our way, and that’s part and parcel of a democracy that attempts to meet the needs of 350 million people scattered across 50(+) states. But, that doesn’t mean that I will not fight to get my own way, when I feel that the other way is evil. I understand that there are those who do not feel that oppression of minorities and other marginalized demographics is “evil”, and that they believe that they are right and good to keep such people “in their place.” I vehemently disagree with them, and I would even be tempted to say that such a viewpoint is “illegitimate”, but to the fact that it exists, and people act and vote upon such motivations is a reality. I do believe that the courts have a role to play in preventing the rights of the less fortunate from being oppressed by the majority, especially when it comes to protections outlined in the constitution like the equal protection clause that may not have been fully “understood” at the time of passing. You agreed that the 14th should have protected interracial marriages, and yet it was 100 years before the SC recognized that right. Do you feel that loving v virginia was activism, or was it the court finally recognizing what was there all along? Oh, and a thought on your example of the 5th amendment protecting the unborn from being deprived of life without a trial. If that were upheld, then it seems that any killing, no matter how justified, without an actual trial, would be held to the same standard. Cop shoots someone, depriving them of life only on “probable cause”, or if you shoot someone because you thought that they may be threatening you with harm, would need to be adjudicated the same as if a woman gets an abortion in defiance of the court ruling. Otherwise, if a doctor and a woman are given the same freedom as a cop or a civilian to protect their selves or their property from the threat of bodily harm and property loss that bearing a child can have, then they can justify an abortion the same way, under either self defense or defense of property. So, while your SC may uphold a federal anti-abortion law under the 5th, by strictly requiring “due process” before life, limb or property may be taken, it does seem to have some wider reaching effects. ---
**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, 6:53pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/126 "2017-02-03T18:53:09Z")
> [@Bricker](#): > > Maybe we should start with this postulate: in a self-governed, representative democracy, you won’t always get your way. > > In fact, things you hold to be “good,” may be viewed as evil by others; things you believe evil are good in others’ eyes. > > So the point of a self-governed society is to rest ultimate decision all power in the voters, and in a representative democracy allow the voters to regularly select leaders to implement their will. > > Even if that will is something you passionately believe is wrong, or evil. > > Do you agree? In our system power (theoretically) still ultimately rests with the voters. In the US we have checks and balances. If a judge, even a judge who has a lifetime appointment, makes a decision we don’t like the checks and balances kicks in. The ruling can be appealed or congress can re-write the law to get around the court’s decision. If they really want to they can impeach the judge. In short, no one in the US system has final say. There is always a means to undo what was done. The others who will make these decisions are voted in by the people. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 3, 2017, 6:58pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/127 "2017-02-03T18:58:31Z")
> [@Bricker](#): > > …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? It depends what you mean by Creationism. Public school syllabi are a matter left to the sound (or unsound) discretion of legislatures, and teaching creationism is within the legislature’s prerogative so long as it is presented neutrally. If it’s presented as a thinly-veiled effort at Christian indoctrination, then you should rule based on the Establishment Clause. ---
**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, 7:00pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/128 "2017-02-03T19:00:23Z")
> [@UltraVires](#): > > Do children or even infants have the right to vote under your interpretation of the amendment? After all, they are “people” and “citizens.” Yes. If they meant for it to apply only to adults, they could have said that. The fact that other laws restrict voting only to adults doesn’t change the fact that this particular law doesn’t. And since the “law” in question is part of the Constitution, I’d say it trumps any regular statute. > [@UltraVires](#): > > Further, if you read section 2 of the 14th amendment, you can clearly see that your interpretation of section 1 is incorrect. In the SAME AMENDMENT, Congress contemplates a state not allowing a person to vote based upon race and sex. > > Reading these two sections together, your interpretation of section 1 is clearly wrong. And in the same book, the Bible says Noah took two of each kind of animal on board his ark, and that he took seven of each kind. Does that make my _interpretation_ of the Bible wrong, or does it just make the Bible wrong? Besides, that’s not what I see when I read the text. The first clause says “Equal protection for all citizens and persons, regardless of sex or age” and the second clause says “but, if you do restrict voting rights of males over 21, your representation in congress with be lowered by the same proportion as the voters you restricted are to the whole population of adult males”. That sounds to me like it’s saying “this particular punishment only applies when adult males are restricted from voting”. It doesn’t sound like it’s saying that there is no punishment allowed when women are restricted from voting, just that a particular punishment isn’t listed. ---
**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, 7:09pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/129 "2017-02-03T19:09:08Z")
> [@Happy\_Fun\_Ball](#): > > It doesn’t. From this it is clear to me that the equal protection clause applies to all citizens, not just men. What does this have to do with voting, women, and the nineteenth amendment? > > Oh, there it is, that pesky gender specifier. Right there in the text. No need to try to figure out the intent, we can just read it! Then read it again. It does not guarantee voting to anyone. ---
**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, 7:19pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/130 "2017-02-03T19:19:57Z")
> [@Revenant\_Threshold](#): > > How does that square with the argument you brought up earlier?; Why look strictly to the intent and knowledge of the situation in terms of **Whack-a-Mole** ’s hypothetical, but not when it comes to the 2nd Amendment? My argument is identical in both situations. The intent and knowledge of the time the amendment was approved is what applies. At the time the Second Amendment was approved, the adopters were well aware that the technology had gone from matchlocks to wheel locks to flintlocks, from smooth bores to rifled barrels. If you had asked any of them, “You know that in fifty years, guns will be better and faster than they are now, right?” they would have agreed. But if you had asked them, “You know that in 150 years, this language will be used to support a man marrying another man, right?” they would not have agreed. What makes a law legitimate in a representative democracy is that it’s passed with the assent and understanding of the legislators. In Shakespeare’s day, the word “nice,” meant trivial, stupid, unimportant, or slight. Today it means pleasant, friendly, agreeable. If a law were passed that hinged on the word “nice,” and it stayed on the books, do you feel it should start having its new meaning? ---
**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, 7:25pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/131 "2017-02-03T19:25:48Z")
> [@Whack-a-Mole](#): > > In our system power (theoretically) still ultimately rests with the voters. > > In the US we have checks and balances. > > If a judge, even a judge who has a lifetime appointment, makes a decision we don’t like the checks and balances kicks in. The ruling can be appealed or congress can re-write the law to get around the court’s decision. When the decision rests on Constitutional grounds, Congress cannot. > [@](#): > > If they really want to they can impeach the judge. Ask yourself what your reaction would be in Trump’s GOP Congress moved to impeach the judges that were in the majority for Obergefell: (A) Well, that’s democracy at work. (B) Outrageous and illegitimate intimidation of the judiciary! ---
**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, 7:26pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/132 "2017-02-03T19:26:53Z")
> [@Bricker](#): > > But if you had asked them, “You know that in 150 years, this language will be used to support a man marrying another man, right?” they would not have agreed. Are you sure? If you sat down with Madison or Jefferson and said, “You realize these ideals suggest that it is not only white men who deserve these protections but a whole slew of other groups including black people and women?” that the FFs would have backed off their ideals? ---
**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, 7:33pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/133 "2017-02-03T19:33:44Z")
> [@Bricker](#): > > When the decision rests on Constitutional grounds, Congress cannot. > > Ask yourself what your reaction would be in Trump’s GOP Congress moved to impeach the judges that were in the majority for Obergefell: > > (A) Well, that’s democracy at work. > > (B) Outrageous and illegitimate intimidation of the judiciary! If the Supreme Court rules (being the final say) you can impeach the judges or wait till you can appoint other judges who agree or you can amend the constitution. It took a century to overturn Dred Scott but it was overturned. If you want to argue the system to too slugish fine. I would partially agree. ---
**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, 7:34pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/134 "2017-02-03T19:34:17Z")
> [@Bricker](#): > > Then read it again. > > It does not guarantee voting to anyone. I suppose the second article of the amendment doesn’t guarantee the right to vote, it just has penalties for not allowing it, so in that sense you are right. But in the sense that we are talking in this thread, it certainly does address the right to vote, even if it does not guarantee it. > [@Bricker](#): > > My argument is identical in both situations. > > The intent and knowledge of the time the amendment was approved is what applies. At the time the Second Amendment was approved, the adopters were well aware that the technology had gone from matchlocks to wheel locks to flintlocks, from smooth bores to rifled barrels. If you had asked any of them, “You know that in fifty years, guns will be better and faster than they are now, right?” they would have agreed. If you had said, in 100 years, you will be able to fire thousands of rounds a minute at many times the muzzle velocity, they may have been surprised. > [@](#): > > But if you had asked them, “You know that in 150 years, this language will be used to support a man marrying another man, right?” they would not have agreed. And if you had asked, “You know, in 100 years, this language will be used to support a black man marrying a white woman?” do you think they would have agreed? If not, is it because they didn’t think it would happen, or they wouldn’t have thought it would take 100 years for the obvious intent of their language to be recognized? > [@](#): > > What makes a law legitimate in a representative democracy is that it’s passed with the assent and understanding of the legislators. In Shakespeare’s day, the word “nice,” meant trivial, stupid, unimportant, or slight. Today it means pleasant, friendly, agreeable. > > If a law were passed that hinged on the word “nice,” and it stayed on the books, do you feel it should start having its new meaning? ---
**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, 7:46pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/135 "2017-02-03T19:46:10Z")
> [@Whack-a-Mole](#): > > It took a century to overturn Dred Scott but it was overturned. My bad… I meant to say Plessy v. Ferguson. ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [February 3, 2017, 8:05pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/136 "2017-02-03T20:05:30Z")
> [@Bricker](#): > > My argument is identical in both situations. > > The intent and knowledge of the time the amendment was approved is what applies. At the time the Second Amendment was approved, the adopters were well aware that the technology had gone from matchlocks to wheel locks to flintlocks, from smooth bores to rifled barrels. If you had asked any of them, “You know that in fifty years, guns will be better and faster than they are now, right?” they would have agreed. You didn’t actually address my point earlier in the thread about how the \*character \*of the guns in question has changed. You seem to be narrowing that down to just “better and faster”, which doesn’t seem reasonable. Too, even within those boundaries, you’re taking recognition of change and assuming recognition of vast change. I agree that it is reasonable that the adopters of the Second Amendment would think that in fifty years, guns would be “better and faster”. I think that if we asked them if, in fifty years, transport technology would be “better and faster” that they would also agree. I don’t think that means they would have envisioned the existence of our old friend the Model T. Nor too can we assume the societal implications of the future would have been envisioned by them. What do you think would have been their reaction if asked, “You know that in 200 years, guns will be readily and easily available for many black people in the US?” > [@](#): > > But if you had asked them, “You know that in 150 years, this language will be used to support a man marrying another man, right?” they would not have agreed. You know, I agree it’s probable… but I’d actually be curious as to cites to base this belief on. Do we have any writings we can point to for this one, or is it just “Well, they were men of their time.”? > [@](#): > > What makes a law legitimate in a representative democracy is that it’s passed with the assent and understanding of the legislators. With respect; on this point, we are agreed. We simply differ on whether that assent and understanding exists. I don’t need this particular point, uh, pointed out. 🙂 > [@](#): > > In Shakespeare’s day, the word “nice,” meant trivial, stupid, unimportant, or slight. Today it means pleasant, friendly, agreeable. > > If a law were passed that hinged on the word “nice,” and it stayed on the books, do you feel it should start having its new meaning? You’ll have to de-vague that for me. At what point is the law passed? Is my feeling my personal feeling, or my personal feeling overall, or my idea for how the law should be judged, or something else? It might be clearer with a hypothetical case. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 3, 2017, 8:18pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/137 "2017-02-03T20:18:44Z")
> [@Bricker](#): > > Who cares if it’s a bad law? The Constitution does not forbid bad laws. . . . Sorry; by “bad” I meant “unconstitutional.” Like it or not, the courts get to determine that. When they do so, it is not “legislating.” Scalia was ignorant of the constitution (or simply chose to ignore it.) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 3, 2017, 10:21pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/138 "2017-02-03T22:21:02Z")
> [@DrCube](#): > > Yes. If they meant for it to apply only to adults, they could have said that. The fact that other laws restrict voting only to adults doesn’t change the fact that this particular law doesn’t. And since the “law” in question is part of the Constitution, I’d say it trumps any regular statute. If the reading leads you to believe that newborn children have a constitutional right to vote, then perhaps a reconsideration of your thought is in order. > [@DrCube](#): > > And in the same book, the Bible says Noah took two of each kind of animal on board his ark, and that he took seven of each kind. Does that make my _interpretation_ of the Bible wrong, or does it just make the Bible wrong? > > Besides, that’s not what I see when I read the text. The first clause says “Equal protection for all citizens and persons, regardless of sex or age” and the second clause says “but, if you do restrict voting rights of males over 21, your representation in congress with be lowered by the same proportion as the voters you restricted are to the whole population of adult males”. That sounds to me like it’s saying “this particular punishment only applies when adult males are restricted from voting”. It doesn’t sound like it’s saying that there is no punishment allowed when women are restricted from voting, just that a particular punishment isn’t listed. The point is that notwithstanding Section 1, a state may still have a law that says “Only white males over 21 may vote”; it’s just that they lose representation in Congress. Your broad reading of Section 1 should prohibit this out of hand. Again, one more data point that Section 1 is not to be read so broadly as to require a State to permit infant voting. What about marriage? Should a State be required to permit two 9 year olds to marry one another? Remember, 9 year olds are “persons” and “citizens” ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 3, 2017, 11:30pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/139 "2017-02-03T23:30:07Z")
The whole point of separating government into 3 branches is so that they play different roles. Judicial activism is judiciary playing the role of legislative. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 3, 2017, 11:44pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/140 "2017-02-03T23:44:25Z")
And? Is it your contention that the legislature never intrudes on the role of the judiciary? [Previous page](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751.md?page=6) [Next page](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751.md?page=8)