Curbing Judicial Activism

[saveliberty]

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution",

 

[PratchettFan]

Definition of Judicial Activism - "A decision I don't agree with."

 

[PoliticalChic]

Definition of Judicial Activism - "A decision I don't agree with."

No....it correctly refers to judges writing law from the bench.


An example is the work of the despicable Wm. Brennan...

1. "Writing in the Harvard Law Review in 1977, Supreme Court Justice William Brennan, Jr., exhorted state judges to embrace activist interpretations of the law. .... Brennan is rightly seen as one of the fathers of the “living Constitution,” under which judges continually reinterpret the nation’s fundamental law “in light of conditions existing in contemporary society.”

2. .... in his Harvard Law Review article, Brennan also ventured onto ... a defense of the idea of constitutionally protected economic, or what legal scholars have come to call “positive,” rights—government guarantees of a material nature.
Brennan's Revenge by Steven Malanga, City Journal Spring 2014

 

[saveliberty]

Judical activism is an afront to checks and balances. The court more than either other body must adhere to the Constitution and its protections.

 

[PoliticalChic]

Judical activism is an afront to checks and balances. The court more than either other body must adhere to the Constitution and its protections.

As Woodrow Wilson wished, 'checks and balances,' as a concept in American politics, is long dead and gone.


This is because all three branches are aimed at the ever increase of centralized federal power.



There seem to be only two ironclad rules of government:

Rule no.1: Always try to expand;

Rule no. 2: see Rule no. 1.
Beck, Balfe, “Broke,” p. 115

 

[PratchettFan]

Definition of Judicial Activism - "A decision I don't agree with."

No....it correctly refers to judges writing law from the bench.


An example is the work of the despicable Wm. Brennan...

1. "Writing in the Harvard Law Review in 1977, Supreme Court Justice William Brennan, Jr., exhorted state judges to embrace activist interpretations of the law. .... Brennan is rightly seen as one of the fathers of the “living Constitution,” under which judges continually reinterpret the nation’s fundamental law “in light of conditions existing in contemporary society.”

2. .... in his Harvard Law Review article, Brennan also ventured onto ... a defense of the idea of constitutionally protected economic, or what legal scholars have come to call “positive,” rights—government guarantees of a material nature.
Brennan's Revenge by Steven Malanga, City Journal Spring 2014

Sure. I think my definition is far more accurate.

 

[saveliberty]

Definition of Judicial Activism - "A decision I don't agree with."

No....it correctly refers to judges writing law from the bench.


An example is the work of the despicable Wm. Brennan...

1. "Writing in the Harvard Law Review in 1977, Supreme Court Justice William Brennan, Jr., exhorted state judges to embrace activist interpretations of the law. .... Brennan is rightly seen as one of the fathers of the “living Constitution,” under which judges continually reinterpret the nation’s fundamental law “in light of conditions existing in contemporary society.”

2. .... in his Harvard Law Review article, Brennan also ventured onto ... a defense of the idea of constitutionally protected economic, or what legal scholars have come to call “positive,” rights—government guarantees of a material nature.
Brennan's Revenge by Steven Malanga, City Journal Spring 2014

Sure. I think my definition is far more accurate.

Maybe to the waitress and your local coffee shop, if you tip enough.

 

[PoliticalChic]

Definition of Judicial Activism - "A decision I don't agree with."

No....it correctly refers to judges writing law from the bench.


An example is the work of the despicable Wm. Brennan...

1. "Writing in the Harvard Law Review in 1977, Supreme Court Justice William Brennan, Jr., exhorted state judges to embrace activist interpretations of the law. .... Brennan is rightly seen as one of the fathers of the “living Constitution,” under which judges continually reinterpret the nation’s fundamental law “in light of conditions existing in contemporary society.”

2. .... in his Harvard Law Review article, Brennan also ventured onto ... a defense of the idea of constitutionally protected economic, or what legal scholars have come to call “positive,” rights—government guarantees of a material nature.
Brennan's Revenge by Steven Malanga, City Journal Spring 2014

Sure. I think my definition is far more accurate.

No....yours is simply short-sighted.

 

[Nemo]

The Constitution is certainly a “living document” - it is alive and well today - and it speaks to us every day through the federal judiciary. It lives in pace with the times; and ‘"that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it.’ See "Popular Basis of Political Authority" Thomas Jefferson to James Madison, Papers 15:392-97 (6 Sept. 1789). It continues to sustain our nation of laws because its provisions are flexible enough to survive change, while yet preserving the spirit as well as the letter of the laws that govern us. Were it otherwise, our nation under law would have dissolved long ago.

 

[PoliticalChic]

The Constitution is certainly a “living document” - it is alive and well today - and it speaks to us every day through the federal judiciary. It lives in pace with the times; and ‘"that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it.’ See "Popular Basis of Political Authority" Thomas Jefferson to James Madison, Papers 15:392-97 (6 Sept. 1789). It continues to sustain our nation of laws because its provisions are flexible enough to survive change, while yet preserving the spirit as well as the letter of the laws that govern us. Were it otherwise, our nation under law would have dissolved long ago.

"The Constitution is certainly a “living document” - it is alive and well today..."


Either you are clueless as to the import of 'a living Constitution,'

...or you are making a feeble attempt to mitigate it's depredations on the American system.





"... are flexible enough to survive change,..."

Your post..... enough hot air to float a blimp.

The authority to amend the Constitution of the United States is derived from Article V of the Constitution.
Any judge who does so should be imprisoned.

 

[Nemo]

It is not helpful to attempt to divine the original intent of the framers of our Constitution in every context; nor illuminating to read it by candlelight. Americans have always been a forward-looking people and not anachronistic in our views. (We no longer go about our lives in powdered wigs and small clothes.) I think it must be admitted that the Constitution is a "living document," as evident by the fact that it has been amended twenty-seven times since its adoption by the several states; which is a testament to the wisdom and foresight of the framers in making provision for such future changes. Surely, they could not have intended that we be ruled by their dead hands.

Times have changed. Democracy in America has come a long way from its early beginnings following our struggle for independence. The America Alexis de Tocqueville described in the 1830's, which was largely an agrarian society, was eclipsed by the rise of the nation as an industrial power in the latter half of the Nineteenth Century to become the great economic and military power of the Twentieth Century; and with such changes came the inevitable expansion of the nature and power of government, and the laws that govern our society. Our "founding fathers" could only be utterly astonished at the America of today. But what would comfort them most, notwithstanding the recent efforts of certain groups to rewrite our history, is that we are still a nation of laws and not men.

 

[saveliberty]

It is not a living document, it is amendable. Should America as a whole choose to change it there is a procedure. This is far different than allowing justices to "interpret" the Constitution, which is what you would like it to mean, but it does not.

 

[Nemo]

Consider the right of privacy (a subject much in the news of late). There is no express provision of the Constitution for a general right of privacy. Rather it is based on the decisions of the Supreme Court in interpreting the First, Fourth, Fifth and Ninth Amendments viewed through the prism of the due process clause of the Fourteenth Amendment in such cases as Griswold v. Connecticut, Roe v. Wade, Cruzon v. Missouri Dept. of Health, and Lawrence v. Texas. It is the product of an expansive reading of the Constitution rather than a literal interpretation of its provisions. I can remember Judge Robert Bork (renowned constitutional scholar and foremost exponent of "Originalism" in the interpretation of the Constitution) stating that there was no constitutional right to privacy, which did not go down well in the Senate confirmation hearings for his failed nomination to the Supreme Court; albeit today Justices Scalia, Thomas and Alito, as well as Chief Justice Roberts, would be considered to have rather narrow views on the right of privacy. Still, whether a specific law violates a protected right is a matter for independent judicial review; which is the province of the judiciary, not the citizenry. To hold otherwise would be to deny the power of the judicial branch under Article III of the Constitution. In this, to say that the Constitution means what it says is only to beg the question of its interpretation, and that is a subject upon which, ultimately, the Supreme Court has the final word. In the final analysis, the Constitution says what the Supreme Court says it says.

 

[saveliberty]

No, the Court applies the Constitution. Not every part of it is germane to a specific case. I'd be curious how you think the 14th Amendment (repealing slavery) has squat to do with privacy. If you "borrowed" it from a source you need to quote the source.

 

[Nemo]

The source is the decisions of the Supreme Court cited above. By the bye, the provisions of due process and equal protection under the Fourteenth Amendment have been deemed applicable to the states under the "incorporation doctrine" as to constitutionally protected rights.

 

[PoliticalChic]

It is not helpful to attempt to divine the original intent of the framers of our Constitution in every context; nor illuminating to read it by candlelight. Americans have always been a forward-looking people and not anachronistic in our views. (We no longer go about our lives in powdered wigs and small clothes.) I think it must be admitted that the Constitution is a "living document," as evident by the fact that it has been amended twenty-seven times since its adoption by the several states; which is a testament to the wisdom and foresight of the framers in making provision for such future changes. Surely, they could not have intended that we be ruled by their dead hands.

Times have changed. Democracy in America has come a long way from its early beginnings following our struggle for independence. The America Alexis de Tocqueville described in the 1830's, which was largely an agrarian society, was eclipsed by the rise of the nation as an industrial power in the latter half of the Nineteenth Century to become the great economic and military power of the Twentieth Century; and with such changes came the inevitable expansion of the nature and power of government, and the laws that govern our society. Our "founding fathers" could only be utterly astonished at the America of today. But what would comfort them most, notwithstanding the recent efforts of certain groups to rewrite our history, is that we are still a nation of laws and not men.

1. "It is not helpful to attempt to divine the original intent of the framers of our Constitution in every context; nor illuminating to read it by candlelight."


Progressive propaganda.


Judge Bork makes the point that Originalists can easily apply timeless constitutional commands to new technologies, such as wiretapping and television, and to changed circumstances, as suits for libel and slander.

All the judge needs is knowledge of the core value that the Framers intended to protect. And, while we may not decide every case in the way the Framers would have, “entire ranges of problems will be placed off limits to judges, thus preserving democracy in those areas where the framers intended democratic government.”



2. "...Americans have always been a forward-looking people and not anachronistic...."

Justice Brennan falls back on the idea that moderns should not be bound by “a world that is dead and gone.”

Of course, there are lots of laws on the books today by folks dead and gone: Social Security laws, or the Civil Rights Act of 1964, or the Sixteenth Amendment imposing an income tax, and all nine justices who participated in Roe v. Wade are now dead.

Would you, Brennan, or the rest of the Progressives, suggest ignoring any of these….or does he simply wish to allow judges to pick and choose which laws written by dead people we are to be bound by?

No, this ‘transformative’ view is simply designed to allow justices to erase parts of the Constitution.

 

[saveliberty]

The Constitution clearly states that all rights not enumerated fall to the states and individual. No "interpretation" needed. It is also an improper debate technique to base a point on assumption.

 

[Nemo]

That is an assumption. To say that one has rights retained under the Ninth Amendment (petitio principii “begs the question&#8221 assumes the existence of such rights in the first instance. Under the Constitution, rights exist only by law.

 

[saveliberty]

That is an assumption. To say that one has rights retained under the Ninth Amendment (petitio principii “begs the question&#8221 assumes the existence of such rights in the first instance. Under the Constitution, rights exist only by law.

What is it with you and terminology? It is apply not interpret.

Further rights do not exist by law. Your rights exist because you do. Given by birth alone. Tyrannts can oppress them, laws never give them. Laws grant privileges. Please quote where the Constitution grants any right. It enumerates them, which simply means a list. A list of things you already had. This whole concept of government as some type of benevolent deity is bunk.

 

[saveliberty]

All of this spouting you are doing comes directly from the Progressive Handbook, the fallacies are many and quite large.