NationStates Jolt Archive

Plessy Vs. Fergusin
Miranda Vs. Arizona
Roe Vs. Wade
Brown Vs. BOE

and in a state sense, the recent legalization of gay marriage in Mass.

These are all examples of Judicial activism, where the courts make a descison based on the constitution, and it changes law. Should this be allowed? Should it be encouraged? Why?

How on earth does Miranda v. Arizona get counted as an example of "judicial activism"?


For that matter, are you even aware of what a judge does when he makes a decision from the bench?

I think judicial "activism" isn't really anything of the sort. All the judges are doing is fulfilling their obligation: after all, one of the roles of the court system is judicial review (deciding whether laws are constitutional, as established in Marbury v. Madison). So if a court decides a law is unconstitutional, it clearly should be changed (according to the Constitution).

How on earth does Miranda v. Arizona get counted as an example of "judicial activism"?
It's judicial activism if the descision of the court enacts laws. Miranda Vs. Arizona enacted laws, you would know them as the miranda rights. It was very controversial at the time.

I think judicial "activism" isn't really anything of the sort. All the judges are doing is fulfilling their obligation: after all, one of the roles of the court system is judicial review (deciding whether laws are constitutional, as established in Marbury v. Madison). So if a court decides a law is unconstitutional, it clearly should be changed (according to the Constitution).

Hey now! Stop oppressing the Christians! You know it's activism when they should be using morality! :p

That's why the judges are there, to review the laws and change/add them if they're unconstitutional. People complain that the judges aren't being checked by the executive and legislative branches like they're supposed to be, but the judges are doing their job, which is to check those two branches. :rolleyes: But of course the majority will complain until it controls all three branches.

How is the Supreme Court interpreting the Constitution 'judicial activism?' The Supreme Court is mandated (Article III of the Constitution) by the Constitution to hear legal issues and matters that pertain to the Constitution, so I fail to understand what you are trying to get at.
Doing so helps to prevent unconstitutional laws from being passed (so we hope). In your argument of Miranda v. Arizona, it was because people were being arrested without knowing thier legal rights. This case made it mandatory that law enforcement officers must inform the suspect of thier legal rights upon arrest.
Plessy v. Ferguson set up the whole 'sperate but equal' thing between the races, which was not good but it did show awareness that there was inequality between the races and did something to amend this. It was a step (albeit a small one that you would trip over) towards racial equality.
Roe v. Wade is a bit more fuzzy, and has of course basically led to a very bitter debate here in America. "[Roe] claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." That is why it was a Constitutional issue.
Brown v. BOE decided that the Sperate but Equal laws of Plessy v. Ferguson were NOT Constitutional, because Seperate but Equal was not working, and because of it minority education was suffering. Therefore, the Supreme Court decided that these laws had to go away in order for all citizens of the United States to enjoy an equal public education. Another step towards racial equality and Constitutional recognition of equl rights.
The Civil War decided that soverneighty rests with the Federal government, and the states rights, privileges and ability to make law fall under Federal jurisprudence. So, when a state passes a law that is seen as unconstitutional, it is brought to the Supreme Court. Except gun cases, they decided that they don't really give a crap about the 2nd amendment.
Again, I really don't know what you are getting at. I would think that judicial activism would be judges putting aside the Constitution and passing judgement based on thier personal beliefs, not precedent or interpretation of the law, which would be really, really bad, but happens alot. So, if you could clarify, I am certain that we could get a really good discussion going!

That's why the judges are there, to review the laws and change/add them if they're unconstitutional. People complain that the judges aren't being checked by the executive and legislative branches like they're supposed to be, but the judges are doing their job, which is to check those two branches. :rolleyes: But of course the majority will complain until it controls all three branches.

Which is why "judicial activism" really means "judicial rulings contrary to conservative tenets."

Isn't almost every judge something of an activist? Look at the US supreme court. Do you think that it's coincidence that Scalia votes for the conservative option almost every time?

It's judicial activism if the descision of the court enacts laws. Miranda Vs. Arizona enacted laws, you would know them as the miranda rights. It was very controversial at the time.
What law did they enact?

What Miranda said was that confessions made while a person is not aware of their rights can not be used in court. That isn't a law, that's judicial procedure, and an enforcement of rights that we have.

Isn't almost every judge something of an activist? Look at the US supreme court. Do you think that it's coincidence that Scalia votes for the conservative option almost every time?

SHHHH!!!!!

You are not supposed to notice that!

Don't forget his other lesson.

No founding father ever used the phrase seperation of Church and state!

I'm talking about the legal definition of Judicial activism, which is when a court descision makes new laws. I'm not using the Rush Limbaugh definition of Judicial Activism, which means effectively "Anything the judges descide that we don't like."

Judicial activism is a label that conservatives often rail against, and rarely understand. Judicial decisions are SUPPOSED to change law... in particular, they're supposed to strike down unconstitutional ones. That's what judicial review is all about. It's when judicial decisions create new laws that they're being activist.

Of the examples given in the first post, only the Miranda case effectively enacted new laws.

What law did they enact?

What Miranda said was that confessions made while a person is not aware of their rights can not be used in court. That isn't a law, that's judicial procedure, and an enforcement of rights that we have.
Apparently there is no difference in this conversation.

SHHHH!!!!!

You are not supposed to notice that!

Don't forget his other lesson.

No founding father ever used the phrase seperation of Church and state!
Thomas Jefferson doesn't qualify as a founding father? He did, after all, originate the phrase.
http://www.usconstitution.net/jeffwall.html

If Rush Limbaugh and Sean Hannity got together and proclaimed grass to be green, I would start doing complicated tests to make sure that grass wasn't, in fact, purlple.
-me
WTF is "Purlple?"

WTF is "Purlple?"


It's a purple with a hint of pearl. ;)

What law did they enact?

What Miranda said was that confessions made while a person is not aware of their rights can not be used in court. That isn't a law, that's judicial procedure, and an enforcement of rights that we have.
The laws enacted were effectively the Miranda rights. Before Miranda Vs. Arizona, there was no law stating that you could have a lawyer while being interrogated by police. Now you can. A law had to be made to do that, just like a law had to be made to make police officers read the miranda rights to arrested people.

That's why the judges are there, to review the laws and change/add them if they're unconstitutional. People complain that the judges aren't being checked by the executive and legislative branches like they're supposed to be, but the judges are doing their job, which is to check those two branches. :rolleyes: But of course the majority will complain until it controls all three branches.
review yes. Change/add, no. But US courts have had legislative powers since early 19th century, so it's no suprise they keep doing it.

Brown vs. BOE wasn't that constitutional either, however noone today is complaining.

Judicial activism is a label that conservatives often rail against, and rarely understand. Judicial decisions are SUPPOSED to change law... in particular, they're supposed to strike down unconstitutional ones. That's what judicial review is all about. It's when judicial decisions create new laws that they're being activist.

Of the examples given in the first post, only the Miranda case effectively enacted new laws.

One minor problem Cabinia. Judicial Activism is precisely what the democrats are worried about due to Bush's judicial nominations. That blew that theory right out of the water.

review yes. Change/add, no. But US courts have had legislative powers since early 19th century, so it's no suprise they keep doing it.

Brown vs. BOE wasn't that constitutional either, however noone today is complaining.
Where's their power to check the other two branches of government if they can't change or add to the laws?

I admit, the only education I have on this is a high school government class. Sorry. :D

Thomas Jefferson doesn't qualify as a founding father? He did, after all, originate the phrase.
http://www.usconstitution.net/jeffwall.html
Thomas Jefferson is not a founding father. He was in France during the convention.

review yes. Change/add, no. But US courts have had legislative powers since early 19th century, so it's no suprise they keep doing it.

Brown vs. BOE wasn't that constitutional either, however noone today is complaining.

How is Brown verses the Board of Education not constitutional?

Thomas Jefferson doesn't qualify as a founding father? He did, after all, originate the phrase.
http://www.usconstitution.net/jeffwall.html

You might want to email him that link! ;)

Shows you were his priorities are.

To Clarify:
When a judges descision strikes down a law, that is Judicial Review
When a judges descision creates a law, that is Judical Activism.

Thomas Jefferson is not a founding father. He was in France during the convention.

True but he wrote the Declaration of Independence so yea he does make a founding father. We recognize as founding fathers those that were part of the 2nd Continental Congress that declared independence from Great Britain.

Where's their power to check the other two branches of government if they can't change or add to the laws?

I admit, the only education I have on this is a high school government class. Sorry. :D
They can say that the law is unconstitutional, and void it fully. They cannot change it, or add a new one.

Adkins v. Children's Hospital and Morehead v. New York ex. rel Tipaldo, 298 U.S. 587 (1936).

Thomas Jefferson is not a founding father. He was in France during the convention.

True but his work on the DOI kind of automattically makes him one. :)

They can say that the law is unconstitutional, and void it fully. They cannot change it, or add a new one.
Ah, ok. Combined with:
To Clarify:
When a judges descision strikes down a law, that is Judicial Review
When a judges descision creates a law, that is Judical Activism.
I understand a lot more now. :D

Thomas Jefferson is not a founding father. He was in France during the convention.
He wrote the friggin declaration of independence, and had a hand in the constitution. If that doesn't make one a founding father, nothing does.

One minor problem Cabinia. Judicial Activism is precisely what the democrats are worried about due to Bush's judicial nominations. That blew that theory right out of the water.

But do the Demos scream Judicial Activism? He still has a valid point. It's rather startling to hear some of the arguments from some rather ignorant conservatives that scream that label.

He wrote the friggin declaration of independence, and had a hand in the constitution. If that doesn't make one a founding father, nothing does.

I agree Cyrian space.

But do the Demos scream Judicial Activism? He still has a valid point. It rather startiling to hear some of the arguments from some rather ignorant conservatives that scream that label.

I've heard some doosies from the democratic side as well. It isn't stuck to one party. Both parties are guilty of it.

I've heard some doosies from the democratic side as well. It isn't stuck to one party. Both parties are guilty of it.

Oh I know. I am not suggesting it's only one side. Just confirming the one side that is screaming it at the moment.

If the land was plagued with Scalia clones, then the Demos would scream it as well.

*shudder* Scalia clones...Scary though......

Oh I know. I am not suggesting it's only one side. Just confirming the one side that is screaming it at the moment.

If the land was plagued with Scalia clones, then the Demos would scream it as well.

*shudder* Scalia clones...Scary though......
Its usually only one "side" at a time.

SHHHH!!!!!

You are not supposed to notice that!

Don't forget his other lesson.

No founding father ever used the phrase seperation of Church and state!
Hehe. I love that myth. Silly Christians.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
--Thomas Jefferson, in a letter to Danburry Baptists, 1802

review yes. Change/add, no. But US courts have had legislative powers since early 19th century, so it's no suprise they keep doing it.

Brown vs. BOE wasn't that constitutional either, however noone today is complaining.

You really have no clue. No clue whatsoever.

Interesting you would say that US Courts "have had legislative powers since [the] early 19th century." Our Republic was founded at the end of the 18th century. So, you must be one of those who think that we've been going to hell in a handbasket since the Constitution was first established.

Purely for my amusement, pray tell how Brown v. Board of Education was unconstitutional.

Purely for my amusement, pray tell how Brown v. Board of Education was unconstitutional.

I already asked him that once but it hasn't been answered yet!

The laws enacted were effectively the Miranda rights. Before Miranda Vs. Arizona, there was no law stating that you could have a lawyer while being interrogated by police. Now you can. A law had to be made to do that, just like a law had to be made to make police officers read the miranda rights to arrested people.
Um...no. Basically the courts ruled that any confession made without someone being advised of their rights (the 'laws' providing for these have been in existance for the entire length of our countries existance, as they are enshrined in the Constitution) would be thrown out. The cops, wanting to be able to actually use confessions, started issuing miranda rights after that.

Adkins v. Children's Hospital and Morehead v. New York ex. rel Tipaldo, 298 U.S. 587 (1936).

Excellent examples of so-called "judicial activism" -- in these cases with a conservative bent.

For those who are unaware and do not bother to Google the cases, these were cases in which the Supreme Court had held that child labor laws and minimum wage laws, respectively, violated substantive due process. These are among a string of cases from the Lochner era -- so named for Lochner v. New York, 198 U.S. 45 (1905)

Luckily, the Court saw reason in West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

I've heard some doosies from the democratic side as well. It isn't stuck to one party. Both parties are guilty of it.

Both so-called "judicial activism" and the habit of using the label of "judicial activism" are faults that cross the political and ideological spectrum.

Conservatives have been the primary users of the label as a political weapon for the last 40-odd years.

The extent to which particular decisions are examples of "judicial activism" and, more importantly, whether that is a good or bad thing are debatable.

I am curious as to why people feel they would prefer a laconic and timid judiciary providing only feeble protection against executive and legislative abuses.

Judical activism: Whenever a judge decides to rule against you.
Sound judicial practice: Whever a jude decides to rule for you.

That thunking sound you hear: The sound of students of history and law smacking their heads on a table whenever they hear someone cry judical activism and demand the third branch of goverment be restrained.

Which is why "judicial activism" really means "judicial rulings contrary to conservative tenets."
DAMN straight. :sniper:
Nice shootin'!

Both so-called "judicial activism" and the habit of using the label of "judicial activism" are faults that cross the political and ideological spectrum.

Conservatives have been the primary users of the label as a political weapon for the last 40-odd years.

The extent to which particular decisions are examples of "judicial activism" and, more importantly, whether that is a good or bad thing are debatable.

I am curious as to why people feel they would prefer a laconic and timid judiciary providing only feeble protection against executive and legislative abuses.
Again, you ROCK.
Excellent post(s), if i may say so. *bows*

Again, you ROCK.
Excellent post(s), if i may say so. *bows*

Thanks. :D

But, lest this go to my head, I'm all too aware that for every intelligent post I make one where I am an idiot or an asshole. ;)