# 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:** 9
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 5, 2017, 8:39pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/161 "2017-02-05T20:39:36Z")
> [@Bricker](#): > > Then, what’s the problem? The people in prison were put there by due process of law, the people unable to marry were designated by due process of law. > > Why is one more “due?” Because one regards things they have actually done, as individuals, tried in a court, with the process of evidence and witnesses. The other is blanket, regarding all persons of a vast class, without individual protection, and treats them differently from other persons, in violation of the equal protection clause. ETA: Jim Crow laws were passed by “due process” by state legislatures. Same problem. ---
**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 5, 2017, 10:20pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/162 "2017-02-05T22:20:14Z")
> [@Happy\_Fun\_Ball](#): > > You are never going to address **k9bfriender** ’s question about interracial marriage, are you Bricker? I think he probably did, somewhere in there. I think he thinks he did, anyway. I see this on the science side from time to time, where someone keeps insisting their question wasn’t answered, when it’s actually that they did not understand the answer, so that very well could be the case, I suppose. I don’t expect Bricker to provide me with a legal education, I am happy enough when I come up with a question that is interesting enough for him to spend his time alleviating my ignorance. But, I guess it’s mostly that the framers of the fourteenth were explicitly looking at addressing racial inequality, and so, if later, a matter of racial inequality calls on the fourteenth, then it makes sense in that at least the writers were thinking about racial issues when they wrote it. Sexual orientation issues were probably not on their minds at all. Bricker, am I close? ---
**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 5, 2017, 11:01pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/163 "2017-02-05T23:01:30Z")
> [@k9bfriender](#): > > I think he probably did, somewhere in there. > > I think he thinks he did, anyway.\ If this is true, it would be great if he linked to the specific post. I am not holding my breath though. Back in the day Bricker used to be a great fighter of ignorance and was (IMHO) one of the best contributors to the board. These days he seems to enjoy pointing out liberal hypocrisy more than debating the actual merits of laws, policies, and legal decisions. I think all the liberals have wore him down over the years. ☹ ---
**Author:** ![nightshadea](https://avatars.discourse-cdn.com/v4/letter/n/7ba0ec/32.png) [@nightshadea](https://boards.straightdope.com/u/nightshadea)\ **Post date:** [February 6, 2017, 1:21am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/164 "2017-02-06T01:21:29Z")
you know sometimes I do wonder if the fathers thought “well that’s just common sense we shouldn’t have to write it down it should be obvious …” and they were wrong … ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2017, 1:33am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/165 "2017-02-06T01:33:43Z")
> [@Happy\_Fun\_Ball](#): > > You are never going to address **k9bfriender** ’s question about interracial marriage, are you Bricker? I thought I had. Please point out the post or repost the question. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2017, 1:35am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/166 "2017-02-06T01:35:53Z")
> [@Trinopus](#): > > Because one regards things they have actually done, as individuals, tried in a court, with the process of evidence and witnesses. > > The other is blanket, regarding all persons of a vast class, without individual protection, and treats them differently from other persons, in violation of the equal protection clause. > > ETA: Jim Crow laws were passed by “due process” by state legislatures. Same problem. That’s a lot of argument about the better outcome if we treat them differently. I ask you where the words show we should treat them differently. You said we should apply the word “equal” literally. Then you start giving good reasons we shouldn’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2017, 1:36am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/167 "2017-02-06T01:36:56Z")
> [@John\_Mace](#): > > Procedural or substantive? Procedural. ---
**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:** [February 6, 2017, 1:41am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/168 "2017-02-06T01:41:33Z")
> [@Bricker](#): > > Procedural. That was a rhetorical questions. 😉 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2017, 3:28am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/169 "2017-02-06T03:28:09Z")
> [@k9bfriender](#): > > I think he probably did, somewhere in there. > > I think he thinks he did, anyway. > > I see this on the science side from time to time, where someone keeps insisting their question wasn’t answered, when it’s actually that they did not understand the answer, so that very well could be the case, I suppose. > > I don’t expect Bricker to provide me with a legal education, I am happy enough when I come up with a question that is interesting enough for him to spend his time alleviating my ignorance. > > But, I guess it’s mostly that the framers of the fourteenth were explicitly looking at addressing racial inequality, and so, if later, a matter of racial inequality calls on the fourteenth, then it makes sense in that at least the writers were thinking about racial issues when they wrote it. > > Sexual orientation issues were probably not on their minds at all. > > Bricker, am I close? Yes. I appreciate the kind words, and I’d say you captured the gist of my response. ---
**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 6, 2017, 3:23pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/170 "2017-02-06T15:23:22Z")
> [@nightshadea](#): > > you know sometimes I do wonder if the fathers thought “well that’s just common sense we shouldn’t have to write it down it should be obvious …” and they were wrong … There were a lot of things they didn’t bother writing down, not because they were common sense, but because they were part of the _common law._ The framers adopted the common law of England and Wales (as did the state legislatures) because otherwise they would have had to codify the answer to every legal question in statute. So, for example, they didn’t have to explain what words like jury, due process or tariff meant in the Constitution; they were already defined in English common law (and in the small but growing body of uniquely American common law). ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 7, 2017, 1:53am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/171 "2017-02-07T01:53:46Z")
> [@Bricker](#): > > That’s a lot of argument about the better outcome if we treat them differently. I ask you where the words show we should treat them differently. > > You said we should apply the word “equal” literally. Then you start giving good reasons we shouldn’t. Two different issues. You asked why a bad law, if passed by due process (voted in the legislature) should be overruled. Your implication was that the law has to be valid: it was passed by due process. I pointed out that some laws contradict the constitution, and thus fail to be valid, no matter how orthodox the legislative process was. As for equal justice, I have no idea what you are imagining that I said, but I sure as hell did not say that we should not apply the word “equal” literally. Equal pretty much has to mean what it says. Otherwise, you can justify Jim Crow laws, and locking up U.S. citizens on the basis of their ethnic surnames. Same Sex Marriage depends largely on equal protection. I think you are trying to play some kind of “gotcha” here, but you aren’t succeeding. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 7, 2017, 3:36pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/172 "2017-02-07T15:36:28Z")
> [@Trinopus](#): > > Equal pretty much has to mean what it says. Otherwise, you can justify Jim Crow laws, and locking up U.S. citizens on the basis of their ethnic surnames. Same Sex Marriage depends largely on equal protection. > > I think you are trying to play some kind of “gotcha” here, but you aren’t succeeding. OK, then back to the earlier point: my son, age 15, wants to vote and drive. He reasonably observes that he is a US citizen, and that the Fourteenth Amendment gusrantees him the equal protection of the law. Under what constitutional basis do you refuse him? ---
**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:** [February 7, 2017, 3:44pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/173 "2017-02-07T15:44:07Z")
> [@Bricker](#): > > OK, then back to the earlier point: my son, age 15, wants to vote and drive. He reasonably observes that he is a US citizen, and that the Fourteenth Amendment gusrantees him the equal protection of the law. Under what constitutional basis do you refuse him? Driving is a privilege, not a right, so we can dispense with that easily. As for voting… the constitution sets age limits for President and Senator, so clearly age limits are not, per se, unconstitutional. Unless it is your contention that the 14th amendment nullifies those earlier parts of the constitution. Similarly, one cannot make the case that the death penalty is unconstitutional since it is explicitly listed in the constitution as a punishment for treason. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 7, 2017, 4:08pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/174 "2017-02-07T16:08:51Z")
> [@John\_Mace](#): > > Driving is a privilege, not a right, so we can dispense with that easily. Not so fast. When you say driving is a privilege, are you suggesting that the Equal Protection Clause does not apply? May a state refuse drivers’ licenses to gay drivers? To women drivers? To Asian drivers, under the theory that… well, you know. > [@](#): > > As for voting… the constitution sets age limits for President and Senator, so clearly age limits are not, per se, unconstitutional. That’s an unsupportable conclusion. The Constitution sets a natural-born citizen limit for the Presidency, so can we require that voters must be natural born citizens? > [@](#): > > Similarly, one cannot make the case that the death penalty is unconstitutional since it is explicitly listed in the constitution as a punishment for treason. Agreed. I hate the death penalty and feel it’s a travesty for a civilized society, but I acknowledge it’s constitutional. ---
**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:** [February 7, 2017, 4:20pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/175 "2017-02-07T16:20:04Z")
> [@Bricker](#): > > Not so fast. > > When you say driving is a privilege, are you suggesting that the Equal Protection Clause does not apply? May a state refuse drivers’ licenses to gay drivers? To women drivers? To Asian drivers, under the theory that… well, you know. Good point, and my mistake. The EPC, of course, applies to laws and so no, those restrictions would not pass muster. > [@](#): > > That’s an unsupportable conclusion. The Constitution sets a natural-born citizen limit for the Presidency, so can we require that voters must be natural born citizens? The 14th explicitly says “All persons born or naturalized”, so no. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 7, 2017, 4:32pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/176 "2017-02-07T16:32:12Z")
> [@John\_Mace](#): > > Good point, and my mistake. The EPC, of course, applies to laws and so no, those restrictions would not pass muster. > > The 14th explicitly says “All persons born or naturalized”, so no. OK. So returning to the earlier point: my son, age 15, wants to drive. He reasonably observes that he is a US citizen, and that the Fourteenth Amendment guarantees him the equal protection of the law. Under what constitutional basis do you refuse him? If “those restrictions would not pass muster,” are you agreeing that he can legally challenge his citation for underage driving? My goddaughter, age 8 and a citizen, is also interested in this answer. ---
**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:** [February 7, 2017, 4:36pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/177 "2017-02-07T16:36:28Z")
> [@Bricker](#): > > OK. > > So returning to the earlier point: my son, age 15, wants to drive. He reasonably observes that he is a US citizen, and that the Fourteenth Amendment gusrantees him the equal protection of the law. Under what constitutional basis do you refuse him? The conception explicitly allows age restrictions, so an age restriction is not, per se, unconstitutional. Your son wold have to make his case as to why the state has no compelling interest in prohibiting 15-year-olds from driving on public roads. And since “being a minor” is not a suspect class, the state would only have to meet a Rational Basis test. No? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 7, 2017, 4:40pm UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/178 "2017-02-07T16:40:34Z")
> [@John\_Mace](#): > > The conception explicitly allows age restrictions, so an age restriction is not, per se, unconstitutional. Your son wold have to make his case as to why the state has no compelling interest in prohibiting 15-year-olds from driving on public roads. And since > “being a minor” is not a suspect class, the state would only have to meet a Rational Basis test. No? Wait. I was responding to the **Trinopus** claim that the Equal Protection Clause must be interpreted to forbid all classifications between people. I have no heartburn with the existing caselaw that identifies suspect classifications and levels of scrutiny. > [@Trinopus](#): > > Equal pretty much has to mean what it says. Otherwise, you can justify Jim Crow laws, and locking up U.S. citizens on the basis of their ethnic surnames. Same Sex Marriage depends largely on equal protection. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 8, 2017, 12:31am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/179 "2017-02-08T00:31:52Z")
> [@Bricker](#): > > OK, then back to the earlier point: my son, age 15, wants to vote and drive. He reasonably observes that he is a US citizen, and that the Fourteenth Amendment gusrantees him the equal protection of the law. Under what constitutional basis do you refuse him? You know, if there is anyone on this entire board who finds that argument persuasive, I’ll eat a Mickey Mouse cap. Anyway, the 26th Amendment overrules that one specific argument, so it’s pretty darn weak anyway. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 8, 2017, 12:35am UTC](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751/180 "2017-02-08T00:35:06Z")
> [@Bricker](#): > > . . . I was responding to the **Trinopus** claim that the Equal Protection Clause must be interpreted to forbid all classifications between people. . . . One more time: I did not say that. Nice try, but if you would discontinue straw man attacks, things would be a lot more comfortable here. I also favor laws regarding mental competence, and restricting gun ownership on that basis. Someone who is legally insane can be forbidden from owning a gun. Do you seriously imagine this violates the 14th Amendment’s equal protection clause? (More to the point, do you seriously imagine that I seriously imagine so?) Stop trying to play “gotcha.” It’s unseemly. [Previous page](https://boards.straightdope.com/t/should-judges-demonstrate-judicial-restraint-or-judicial-activism/778751.md?page=8)