Wisconsin Supreme Court election & referendum today

[Richard_Parker]

@Bricker

Lochner. That was the start.

Heh. Clearly David Bernstein hasn’t succeeded in persuading you to read his book!

[Darth_Panda]

@Bricker

Lochner. That was the start.

What is it about Lochner than makes it different than McCulloch with regards to the role of the judiciary in your opinion?

How is finding liberty of contract implied by the due process clause different than finding the power to create a bank implied by the necessary and proper clause?

[Really_Not_All_That_Bright]

Not my argument, but in McCulloch the court was just being asked to ratify the government’s action. In Lochner it essentially came up with its own.

[Darth_Panda]

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.

Justice Marshall, delivering the opinion of the court in McCulloch v. Maryland, 17 U.S. 316 (1819)

[Darth_Panda]

@Really_Not_All_That_Bright

Not my argument, but in McCulloch the court was just being asked to ratify the government’s action. In Lochner it essentially came up with its own.

In Lochner the court was being asked review legislative action…

[BrainGlutton]

@Darth_Panda

@Justice John Marshall

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public.

That’s a fair description of the State Constitution of Florida and I believe it’s typical of state constitutions, for some reason.

[ITR_champion]

@BrainGlutton

Well, there’s a bit more to it than that.

What’s the “bit more”. What your link says is the same as what DJ Motorbike said, namely that Kelly Rindfleisch is in prison for sending fundraising emails from her office, which scarcely seems like an offense that merits prison time. Al Gore did as similar thing as Vice President, making campaign-related phone calls from his office in violation of rules; I don’t recall him going to prison for it. Hillary had a little dust-up involving an email account too, not so long ago. I don’t think she’ll be going to jail either.

It seems more like the Democrats are trying to send a message that they’ll try to ruin the lives of anyone who works with the Republican Party through aggressive and not-necessarily-legal prosecutions. The latest revelations about Democratic prosecutorial abuses in Wisconsin do little to contradict that picture.

[Really_Not_All_That_Bright]

She is in prison for collecting a public paycheck for private work.

I won’t bother pointing out the irony of conservatives bitching about no-knock warrants.

[BigAppleBucky]

@jtgain

Until judges recognize their proper role as custodians of the law and stop acting as super legislators imposing their own value judgments on political issues, we can expect this sort of thing to continue in Wisconsin and every other state.

Hell, the U.S. Supreme Court nominations were ho-hum affairs until judicial activism started.

You understand the actual definition of an activist judge, don’t you? An activist judge is one who makes decisions you don’t agree with.

[Bricker]

@BigAppleBucky

You understand the actual definition of an activist judge, don’t you? An activist judge is one who makes decisions you don’t agree with.

That’s not correct.

An activist judge is one who advances his own agenda by recourse to extra-textual constitutional or statutory propositions.

[Bricker]

@Really_Not_All_That_Bright

I won’t bother pointing out the irony of conservatives bitching about no-knock warrants.

Richards v. Wisconsin was unanimous.

[Really_Not_All_That_Bright]

I believe you have missed the point.

[CaptMurdock]

@Bricker

That’s not correct.

An activist judge is one who advances his own agenda by recourse to extra-textual constitutional or statutory propositions.

Example?

[Really_Not_All_That_Bright]

That’s Bricker’s personal definition. The classic example is the “penumbra” of privacy rights that are implied (but never explicitly referenced) in the text of the constitution.

Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” That’s a bit less charitable than Bricker’s view.

[Haberdash]

Has everyone in Wisconsin gone insane? Althouse: "Is Milwaukee County DA interested in pursuing criminal libel prosecutions of his political critics?"