NationStates Jolt Archive

Seriously?

Another thing I don't get: "activist judges" get bashed for not ruling in favor of public opinion. How the hell is that any less neutral than judicial activism?:headbang:

It's a right-wing strawman that gets trotted out whenever gays aren't put in jail or "christians" aren't allowed to force biblican doctrine into the public school curriculum.

I thought it was when judges released convicted murderers from prison, forced communities to accept paroled child molesters, and took gun rights away.

IMHO, it's when rulings are made that don't conform to the intent of the Founders. Often called "legislation by court ruling" because the party that actually would like legislation to say certain things doesn't have the balls to put it on a bill and vote for it.

Both parties are famous for it, although to hear one or the other, you would always think it was the opposing party that did this.

I always thought it was an excuse used by conservatives to describe a Supreme Court judge that they either don't like or who made a decision that renders one of their platform issues unconstitutional...

Come to think of it, I've never heard a conservative judge described as an activist...

Honestly, sometimes I wish Bush would say the shit he does right in the face of gay people. Then see what happens.:D

Come to think of it, I've never heard a conservative judge described as an activist...
I think Scalia has been accused of activism in the past.

http://www.reason.com/0510/co.cy.antonin.shtml
http://www.watchblog.com/democrats/archives/002431.html

EDIT: See The Nazz's post.

I always thought it was an excuse used by conservatives to describe a Supreme Court judge that they either don't like or who made a decision that renders one of their platform issues unconstitutional...

Come to think of it, I've never heard a conservative judge described as an activist...
Well, I've argued in the past that by any reasonable definition of "activist" or "legislating from the bench," you could call Antonin Scalia the most activist of judges--he has precious little respect for stare decisis except when it suits his purposes. I mean, I disagree with Clarence Thomas the vast majority of the time, and I think his ideas about originalism are ludicrous, but at least he's consistent.

I thought it was when judges released convicted murderers from prison, forced communities to accept paroled child molesters, and took gun rights away.

Just like the ones that forced communities to accept African-Americans.


IMHO, it's when rulings are made that don't conform to the intent of the Founders.

So when did you last talk to one of the founders?


Often called "legislation by court ruling" because the party that actually would like legislation to say certain things doesn't have the balls to put it on a bill and vote for it.

Both parties are famous for it, although to hear one or the other, you would always think it was the opposing party that did this.

Legislation from the bench and versions of it is a republican strawman.....

So when did you last talk to one of the founders?
Something I'm constantly baffled by in US politics is the veneration of the Founders. Why does it matter what they thought? They made a fairly good constitution, but they were mortals, and everyone makes mistakes. I don't understand why their views on the Republic should take precedence over others'.

Well, I've argued in the past that by any reasonable definition of "activist" or "legislating from the bench," you could call Antonin Scalia the most activist of judges--he has precious little respect for stare decisis except when it suits his purposes. I mean, I disagree with Clarence Thomas the vast majority of the time, and I think his ideas about originalism are ludicrous, but at least he's consistent.

That's a good point; I forgot about Scalia when I wrote that post. It seems that judicial activism is only judicial activism when it is

The main weakness with that argument, in my opinion, is that no one really knows what the hell the Founders were intending when they wrote the Constitution. A lot of it is, for good or for worse, vague enough to require interpretation; a good chunk of our current government and civil rights might be nonexistent if not for a looser interpretation of the Constitution on those particular issues.

An activist judge makes decisions related to one's personal views and not based upon what is written in the Constitution. That's why you see people accusing them of 'legislating on the bench'.

They try to create law rather than interpret it.

ac·tiv·ist judge
n. A judge who's rulings are disagreeable to one's personal politics, especially during an election year.

So when did you last talk to one of the founders?

Quite a bit is available. Most of the Founders wrote quite a bit. I suggest you start with the Federalist Papers if you want to glean any intent.

You'll find, for example, that when they said "the right of the people to keep and bear arms" they meant an individual right in addition to a state's right to raise a militia.

Despite Supreme Court rulings to the contrary much much later, this was enshrined in US Code in the definition of the "unorganized militia". Seems they missed something in trying to deprive people of the Second Amendment.

Seriously?

Another thing I don't get: "activist judges" get bashed for not ruling in favor of public opinion. How the hell is that any less neutral than judicial activism?:headbang:

I think the original reference traces back to reaction to court cases that mandated things like busing. Busing black students to predominantly white schools proved hugely unpopular, and it was easy at the time to make the case that the courts had in fact usurped some of the power of the legislative branch to make law; i.e. by mandating that students must be bused and outlining how busing should occur, judges arguably wrote and passed new law by judicial fiat.

That being said, judicial activism has taken on a life of its own, and it seems to be a general conservative boogeyman like "liberal media", "America-haters", and "tax and spenders". Now, judicial activism is a broad brush used to paint any court decision that hurts the conservative cause as alien to the interests of America and the Constitution, irrespective of the reality that it would be damn near impossible to call the Rehnquist or newer courts anything but conservative.

That's a good point; I forgot about Scalia when I wrote that post. It seems that judicial activism is only judicial activism when it is

The main weakness with that argument, in my opinion, is that no one really knows what the hell the Founders were intending when they wrote the Constitution. A lot of it is, for good or for worse, vague enough to require interpretation; a good chunk of our current government and civil rights might be nonexistent if not for a looser interpretation of the Constitution on those particular issues.
I take it a step further--the world we live in today is not the world the Framers lived in, and to expect them to have anticipated the technological and social changes that have taken place in the intervening 200+ years ranks right up there with belief in the Tooth Fairy. Their brilliance was in the fact that they knew they couldn't anticipate everything and so left plenty of room for abstract interpretation. People who insist on looking to the Framers for answers are Luddites, in my view.

Quite a bit is available. Most of the Founders wrote quite a bit. I suggest you start with the Federalist Papers if you want to glean any intent.

You'll find, for example, that when they said "the right of the people to keep and bear arms" they meant an individual right in addition to a state's right to raise a militia.

Despite Supreme Court rulings to the contrary much much later, this was enshrined in US Code in the definition of the "unorganized militia". Seems they missed something in trying to deprive people of the Second Amendment.

Yes, but you are forgetting two things. Narrowly with respect to gun-control, you are forgetting that if the individual citizen owning a Remington is part of the militia, then Congress has the explicit power to arm and regulate his armaments enshrined in the Constitution by virtue of it's enumerated power to arm and regulate the militia. In the wider sense, if the Founding Fathers were quickly at each others throats about what they meant when they wrote lines like "necessary and proper", then how exactly are we to use "original intent" to channel what they mean? Alexander Hamilton and James Madison were two of the most influential writers of the Constitution, but they disagreed vehemently over the meaning of several of the most crucial parts of the Constitution.

I take it a step further--the world we live in today is not the world the Framers lived in, and to expect them to have anticipated the technological and social changes that have taken place in the intervening 200+ years ranks right up there with belief in the Tooth Fairy. Their brilliance was in the fact that they knew they couldn't anticipate everything and so left plenty of room for abstract interpretation. People who insist on looking to the Framers for answers are Luddites, in my view.

Then we should say that since the Internet is a technological and social change not dreamed of by the Founders, that the concept of the First Amendment does not apply to it.

That's the argument that some people use when saying firearms aren't an individual right - they'll say, it was OK back when we had muskets, but this is a technological advance unforeseen by the Framers.

Tough. It's personal weaponry, which the Framers believed that we had an individual right to own. Just like you have the freedom to say just about anything you like on the Internet.

Of course, if you want to do things your way, we can narrow down the First Amendment quite nicely - and quickly.

Quite a bit is available. Most of the Founders wrote quite a bit. I suggest you start with the Federalist Papers if you want to glean any intent.


Ok you just covered Hamilton, Madison, and Jay.

You read them but that hardly declares you understand the man or his intent.

People tend to cherry pick comments that favor their position.

I find people misquote them all the time. For example, Madison believing in Religion because well I can't remember which issue were Madison spoke about the feeling of a Religious man and the wonder.

You'll find, for example, that when they said "the right of the people to keep and bear arms" they meant an individual right in addition to a state's right to raise a militia.

Despite Supreme Court rulings to the contrary much much later, this was enshrined in US Code in the definition of the "unorganized militia". Seems they missed something in trying to deprive people of the Second Amendment.

Madison also understood that things change and did not try to use language that would not allow for change.

Why else would there be Amendments?

T
Tough. It's personal weaponry, which the Framers believed that we had an individual right to own. Just like you have the freedom to say just about anything you like on the Internet.


That was needed to fight off a possible invasion and to deal with those pesky natives.

When we finished the Revolution we were hardly a power house. Everybody having a gun was a good idea.

Madison also understood that things change and did not try to use language that would not allow for change.

Why else would there be Amendments?

Yes, that's why there are Amendments.

The legislature is SUPPOSED to have the balls to pass laws and Amendments - not wait forever until the Court somehow no longer believes that the original definition of "The People" applies in the Second Amendment (but still has the original definition in the First Amendment).

It's this kind of manipulation of definitions to twist meaning that is so stupid.

Congress, if it doesn't like the Constitution, should Amend it. Not twist it through judicial idiocy.

I might add that I could use your logic to eliminate the First Amendment (and most of the others).

If we take the Supreme Court's view on "The People" as meaning the States, and not "The People" (as they have done so many times in the case of the Second Amendment), and since you say that we no longer really need a militia or a gun in every house because times have changed....

then because times have changed (i.e., terrorists living amongst us), we can, without passing a single Amendment, have the Supreme Court rule on Bush's spying on Americans - and have them rule that "The People" now means the same in all Amendments - that is, that freedom of speech, etc., are NOT individual rights.

Just to make things modern and consistent...

Then we should say that since the Internet is a technological and social change not dreamed of by the Founders, that the concept of the First Amendment does not apply to it.

That's the argument that some people use when saying firearms aren't an individual right - they'll say, it was OK back when we had muskets, but this is a technological advance unforeseen by the Framers.

Tough. It's personal weaponry, which the Framers believed that we had an individual right to own. Just like you have the freedom to say just about anything you like on the Internet.

Of course, if you want to do things your way, we can narrow down the First Amendment quite nicely - and quickly.
Wow--way to say something I didn't even come remotely close to saying.

What I said was that we shouldn't look to the Constitution, and by extension, the Framers, for specifics, but more for general ideas, and under that belief, the First Amendment most certainly applies to the internet, because freedom of speech and the press most certainly extends to electronic communication.

Where you went wrong in this, DK, is in assuming that because I'm a liberal, I'm for confiscating guns, or that I don't like the 2nd Amendment. I'm all for leaving gun control up to states and municipalities, and giving the Feds control only over military type weapons.

It's a right-wing strawman that gets trotted out whenever gays aren't put in jail or "christians" aren't allowed to force biblican doctrine into the public school curriculum.
Isn't this the complement to the left's complaint that a judge doesn't represent mainstream values?

Activist judges declare amendments to a state's constitution, voted upon and supported by a majority of the electorate in a legal election, to be unconstitutional.

This has the effect of ensuring that the majority will come to perceive that the act of voting is meaningless, and will cause them to greatly decrease their participation at the polls.:headbang: :headbang: :headbang:

:headbang:

Activist judges declare amendments to a state's constitution, voted upon and supported by a majority of the electorate in a legal election, to be unconstitutional.

This has the effect of ensuring that the majority will come to perceive that the act of voting is meaningless, and will cause them to greatly decrease their participation at the polls.:headbang: :headbang: :headbang:

:headbang:
Can you point to even one example of this happening? I'll bet you can't, because if it's an amendment to the constitution, it cannot, by definition, be unconstitutional. :rolleyes:

As far as I can tell, an "Activist Judge" is any judge who votes with his/her conscience rather than tow the party line.

Something I'm constantly baffled by in US politics is the veneration of the Founders. Why does it matter what they thought? They made a fairly good constitution, but they were mortals, and everyone makes mistakes. I don't understand why their views on the Republic should take precedence over others'.

There were a gang of Freemasons, is what they were....

I thought it was when judges released convicted murderers from prison, forced communities to accept paroled child molesters, and took gun rights away.

IMHO, it's when rulings are made that don't conform to the intent of the Founders. Often called "legislation by court ruling" because the party that actually would like legislation to say certain things doesn't have the balls to put it on a bill and vote for it.

Both parties are famous for it, although to hear one or the other, you would always think it was the opposing party that did this.

Oh, no! Treating criminals like human beings and limiting the ability to own a deadly weapon? How horrible!

Despite Supreme Court rulings to the contrary much much later, this was enshrined in US Code in the definition of the "unorganized militia". Seems they missed something in trying to deprive people of the Second Amendment.
So which ruling was this? I seem to recall you having this argument out with Cat Tribes and Cat pointing out over and over again that SCOTUS has not ruled on the 2nd Amendment.

So when has SCOTUS limited the right to bear arms?

ac·tiv·ist judge
n. A judge who's rulings are disagreeable to one's personal politics, especially during an election year.

nail head hit

Activist judges declare amendments to a state's constitution, voted upon and supported by a majority of the electorate in a legal election, to be unconstitutional.

This has the effect of ensuring that the majority will come to perceive that the act of voting is meaningless, and will cause them to greatly decrease their participation at the polls.:headbang: :headbang: :headbang:

:headbang:

I am not sure whether you were aware of this or not but half of all voters have IQ's BELOW 100. Therefore, half of all popular votes are made from the level of intelligence of mediocre to retarded. That's why you have to be pretty intelligent to be a judge, to balance out the multitude of morons who vote like apes.

I am not sure whether you were aware of this or not but half of all voters have IQ's BELOW 100. Therefore, half of all popular votes are made from the level of intelligence of mediocre to retarded. That's why you have to be pretty intelligent to be a judge, to balance out the multitude of morons who vote like apes.


You have to be a lawyer before you can be a judge. So we have already prevented most cream from rising to the top.

You have to be a lawyer before you can be a judge. So we have already prevented most cream from rising to the top.

Because we all know that beinga lawyer makes you a second-class citizen. Lawyers get so much crap that they don't deserve. :rolleyes:

You have to be a lawyer before you can be a judge. So we have already prevented most cream from rising to the top.
No you don't. There's a number of places that elect their judges and do not require any background in law (Though I've never been quite sure how that worked).

Historically, many of the justices on the SCOTUS haven't been lawyers either.

Because we all know that beinga lawyer makes you a second-class citizen. Lawyers get so much crap that they don't deserve. :rolleyes:
I personally believe lawyers shouldn't be allowed to marry. Not even have a civil union.

Can you point to even one example of this happening? I'll bet you can't, because if it's an amendment to the constitution, it cannot, by definition, be unconstitutional. :rolleyes:
But, maybe I can. Georgia voters overwhelmingly approved an amendment to the state Constitution declaring that gay marriage was illegal. The State Supreme Court upheld a lower court ruling that the amendment was unconstitutional, based on a single-subject law that requires each amendment to address only a single issue.

I suspect this is far more likely to happen with state Constitutions.

No you don't. There's a number of places that elect their judges and do not require any background in law (Though I've never been quite sure how that worked).

Historically, many of the justices on the SCOTUS haven't been lawyers either.
That's technically true when looking at the hstory of SCOTUS, but it hasn't been true in recent years. In the last fifty years or so, the non-lawyers have been a extremely small number.

But, maybe I can. Georgia voters overwhelmingly approved an amendment to the state Constitution declaring that gay marriage was illegal. The State Supreme Court upheld a lower court ruling that the amendment was unconstitutional, based on a single-subject law that requires each amendment to address only a single issue.

I suspect this is far more likely to happen with state Constitutions.
I remember that--the issue was that the one voted on didn't fit the mandated definition of how an amendment had to be worded and so was void on its face. If I recall, the plan is to change the wording, run it again, and it'll probably pass again by an equally large margin.

I remember that--the issue was that the one voted on didn't fit the mandated definition of how an amendment had to be worded and so was void on its face. If I recall, the plan is to change the wording, run it again, and it'll probably pass again by an equally large margin.

Not exactly the actions of an "activist judge" then, just a case of someone FOLLOWING THE LAW AS WRITTEN.

I remember that--the issue was that the one voted on didn't fit the mandated definition of how an amendment had to be worded and so was void on its face. If I recall, the plan is to change the wording, run it again, and it'll probably pass again by an equally large margin.
I don't know for a fact, but I'll be there were more amendments passed and voided during the desegregation era.

In Georgia, a Constitutional Amendment is just another ballot issue. Everything that gets done in government, it seems, has to be done by amending the State's Constitution. Only the approval of the legislature is required to put it on the ballot. Then it's passed by simple majority. There may be some examination by the State AG, but I don't recall that ever being a hindrance. That's why I would be very surprised _not_ to find amendments that have been found unconstitutional.

That's technically true when looking at the hstory of SCOTUS, but it hasn't been true in recent years. In the last fifty years or so, the non-lawyers have been a extremely small number.
That's why I said historically.

Seriously?

Another thing I don't get: "activist judges" get bashed for not ruling in favor of public opinion. How the hell is that any less neutral than judicial activism?:headbang:
Activist judges are those judges who make rulings that neocons don't agree with.

Not exactly the actions of an "activist judge" then, just a case of someone FOLLOWING THE LAW AS WRITTEN.
I wouldn't have expected any less from you.

It is shameful that there have been so many posts without one singel person attempting - in any meaningful way - to respond to the question of the OP. It tells me that most here are more interested in propigating their own opinion without being bothered by anything resembling fact - so let me be the first to spoi this bitch session.

The term 'Activist Judge' is a misnomer to some degree in that it is a restructure of the term 'Judical activism". It would be like calling a judge who sometimes eats bologna sandwiches a 'Baloney Judge'.

Judicial activism is a fairly broad term. It can mean, among other things - when a member of the judiciary takes liberties with a ruling that results in the creation (rather than interpretation) of law (which, in the US, is the job of the legislative branch, not judicial) It also can mean when a judge takes liberties with the intent and execution of a law - using an interprative rather than literal translation of the law. It also can include what a judge may have thought a lawmaker (often from generations past) would have written if they had known what the judge knows today.

Essentially - many believe a judge should not stray from a sound literal execution of the laws on the book and others believe a judge should have the freedom to interpret laws as he sees best for any circumstance - aka judicial activism. Because interpretation can vary broadly - and because values can vary broadly, and because judge competence can vary broadly - being subject to laws which can be left up to the unpredictable interpretation of a judiciary is not what I would consider an optimal resource for justice.

Now, I don't really know all that much about the US system, but I'll try to explain what I see in a very general sense.

Why do we have judges?
We have judges so they can decide on issues based on the facts and their views on those facts. That is the case because we don't just let anyone be a judge, the criteria are many - in other words, we are trying to select someone whose views will be such that they make good decisions, based on the facts as they are represented.

It is therefore foolish to believe that the judges' personal beliefs should not play a role. They obviously do, the whole system is set up that way.

Look at the only US Judge I actually know - Richard Posner. Now, this man could not give the slightest hint of a shit about what the founding fathers said. He has his value system, and he makes decisions based on that system, based on his viewpoint. He's been selected precisely for that reason, because his value system is (for some reason) considered to be compatible with that sort of position.

A second important point is this: We have seperated organs of government for a reason, mainly that they keep each other in check. Considering that a judge is being accused of activism whenever he or she disagrees with whatever the current elected government is pushing through (constitution my arse), it seems that the insult is little but an attempt to diminish the power of the judicative to keep tabs on the legislative.

So if you don't want judges who rule based on a belief system that is different to your own: Don't select them for the job. Because judges are humans and as such are unable to look at world without their set of attitudes, values and beliefs. It's ridiculous to ask for a judge whose opinion shouldn't impact his or her decisions.

Now, I don't really know all that much about the US system, but I'll try to explain what I see in a very general sense. *SNIP*
While I agree that judges need to be able to be flexable with how they look at laws (mainly because society moves faster than laws and it is the applicability of old laws which governs new events until statehouses catch up), that being said however, a judge must also be bound by the law. Their views on the facts must be as impartial as possible because otherwise we get into dangerous areas with judges deciding based only on their views.

Where people get angry at judges is, I think, when they apply the law as written in areas previously not written about. The gay marriage thing is appropriate. In Mass, the issue was that their constitution states equality for all. Obviously when written, they meant equality for white, land owning, men. But judges have to go by the laws and it's hard to justify saying, "Well, it says equality for all and everything, but we know they mean everyone when they said all".

If legislatures would draft bills with finely placed limits on whom we want to discriminate against this wouldn't happen. :p

Because we all know that beinga lawyer makes you a second-class citizen. Lawyers get so much crap that they don't deserve. :rolleyes:

You are one arent you?

You are one arent you?


Oh come on now- there's no reason to start flinging insults about!

*snip*
Commendable post. Seems more or less what I learnt in the first year of law as well. That said, Judges should accord respect to the fundamental tenets of a legal system and the principles upon which it is based (e.g. a Constitution of absolute, or highly placed relative, individual rights). Their opinions factor in, this is undeniable, but the law is above them and they must respect this.

Now, I don't really know all that much about the US system, but I'll try to explain what I see in a very general sense.

Why do we have judges?
We have judges so they can decide on issues based on the facts and their views on those facts. That is the case because we don't just let anyone be a judge, the criteria are many - in other words, we are trying to select someone whose views will be such that they make good decisions, based on the facts as they are represented.

It is therefore foolish to believe that the judges' personal beliefs should not play a role. They obviously do, the whole system is set up that way.

Look at the only US Judge I actually know - Richard Posner. Now, this man could not give the slightest hint of a shit about what the founding fathers said. He has his value system, and he makes decisions based on that system, based on his viewpoint. He's been selected precisely for that reason, because his value system is (for some reason) considered to be compatible with that sort of position.

A second important point is this: We have seperated organs of government for a reason, mainly that they keep each other in check. Considering that a judge is being accused of activism whenever he or she disagrees with whatever the current elected government is pushing through (constitution my arse), it seems that the insult is little but an attempt to diminish the power of the judicative to keep tabs on the legislative.

So if you don't want judges who rule based on a belief system that is different to your own: Don't select them for the job. Because judges are humans and as such are unable to look at world without their set of attitudes, values and beliefs. It's ridiculous to ask for a judge whose opinion shouldn't impact his or her decisions.
First of all - it does not matter what you know of the US judicial system - other nations have court systems also - the mechanics may differ but the term judicial activism can still apply in most modern governments.

Now, What about things like - drunken driving, manslaughter, sexual harassment, prayer in school, abortion, pornography, etc. Are all of these also things which you believe should be arbitrated not only by law but also a multitude of justices personal viewpoints?

Sorry - but I'd prefer the branch of government who interprets and executes the law to do so in a consistent, predictable and by the book fashion. Inconsistiency in justice is not an element of liberty.

While I agree that judges need to be able to be flexable with how they look at laws (mainly because society moves faster than laws and it is the applicability of old laws which governs new events until statehouses catch up), that being said however, a judge must also be bound by the law. Their views on the facts must be as impartial as possible because otherwise we get into dangerous areas with judges deciding based only on their views.

Where people get angry at judges is, I think, when they apply the law as written in areas previously not written about. The gay marriage thing is appropriate. In Mass, the issue was that their constitution states equality for all. Obviously when written, they meant equality for white, land owning, men. But judges have to go by the laws and it's hard to justify saying, "Well, it says equality for all and everything, but we know they mean everyone when they said all".

If legislatures would draft bills with finely placed limits on whom we want to discriminate against this wouldn't happen. :p
That's the main problem with the theory of originalism in law--it doesn't allow for the inevitable evolution of language. That's why earlier in the thread I said that it doesn't matter what the Framers considered "speech" in First Amendment terms--the issue is what we consider speech today. You can't expect to apply 18th century definitions to 21st century concepts or technology, not definitively. What you can do, however, is apply the underlying principles, allowing for the changes in human society over the intervening time frame.

Seriously?

Another thing I don't get: "activist judges" get bashed for not ruling in favor of public opinion. How the hell is that any less neutral than judicial activism?:headbang:

Stench from the bench. One example is sentencing someone to death without a crime ever being committed-Terry Schiavo. Making up new laws by going around the legislature.

Stench from the bench. One example is sentencing someone to death without a crime ever being committed-Terry Schiavo. Making up new laws by going around the legislature.
You, sir, win the award for most hacktackular post in the thread, and that's saying something.

Stench from the bench. One example is sentencing someone to death without a crime ever being committed-Terry Schiavo. Making up new laws by going around the legislature.
edit: i just said something that made no sense.

But anyway, no.

One example is sentencing someone to death without a crime ever being committed-Terry Schiavo.
Ah, you mean following laws and tradition that states a husband has right of guardianship for his wife and the power to make legal and medical decisions for her should she become incapasitated? You mean reading the law as it states the government has no business in interfearing in said guadianship unless abuse is proven? Reading the laws that say the federal and state goverments cannot butt in to medical disputes?

Yes, this is obviously a shining example of legislating from the bench. Obviously we MUST stop these judges from following the law when we don't like the law!

Something I'm constantly baffled by in US politics is the veneration of the Founders. Why does it matter what they thought? They made a fairly good constitution, but they were mortals, and everyone makes mistakes. I don't understand why their views on the Republic should take precedence over others'.
It's true, we have to have a cultured disrespect of the opinions of The Founders to do justice to the standards THEY set for citizen vigilance and action. In America, this is advanced citizenship. So, well said. The Founders would want us to remember they put their pants on one leg at a time. They did their best, and it was pretty good, but not perfect.

Yet I do (also) think there is some worth in examining the real tradeoffs that The Founders made, and in understanding why. But it shouldn't RULE.


***
Judges have an affirmative obligation to provide the "third branch" checks and balances. A judge who calls "bullshit" on the legislature, or the executive branch for writing bad law, or for executing law badly is just doing his or her job.

The Constitution of the USA is often MISinterpreted as being the "source" of our rights. No way! All rights inhere in the people, and in the various states. The legislative branch and the administrative branch can only make laws where there is a valid public policy purpose. They can be stupid laws ... and the courts cannot overturn stupid laws. (But read the Preamble of the Consitution to see the valid purposes for creating Laws -- the scope of authority of the government.)

But the courts can, and ~must~ overturn laws that exceed the scope of authority, or must enjoin the executive from executing laws in a manner that exceed authority.

The reason for having a Constitution is to avoid "tyranny of the majority" -- a bunch of legislators who decide they have to "get tough on X". When they make law, despite the Constitution, it's bad law and someone has to stop them. You don't expect the executive to pick and choose which laws to enforce, do you?

Courts do kick out bad law. Like the laws that upheld and furthered slavery, for example. It may take time, but it happens in the courts first, because it can happen there. Stupid behavior can become a tradition in large groups. Like legislatures and senates.

Politicians hate it when judges nullify some law because it's bad. They take it personally. They're supposed to make good laws (good = doable, Constitutional), not bad laws; that's what they get paid for.

And so they call the judges names. Like "activist" and so on....

Seriously?

Another thing I don't get: "activist judges" get bashed for not ruling in favor of public opinion. How the hell is that any less neutral than judicial activism?:headbang:
Pawns of Satan, or course.

I always thought it was an excuse used by conservatives to describe a Supreme Court judge that they either don't like or who made a decision that renders one of their platform issues unconstitutional...

Come to think of it, I've never heard a conservative judge described as an activist...

Must be because conservatives are "strict constructionists" which means that they try to go with the original intent of the Founding Fathers. Liberal "progressives" are activist judges because they try to interpret the Constitution in a way other than how it was written.

Must be because conservatives are "strict constructionists" which means that they try to go with the original intent of the Founding Fathers. Liberal "progressives" are activist judges because they try to interpret the Constitution in a way other than how it was written.
Please show me a decision that went against how the Constitution was written. Please. I hear this all the bloody time and I have yet to get quoted a case and a desion that went against the Constitution because SCOTUS said so.

Please show me a decision that went against how the Constitution was written. Please. I hear this all the bloody time and I have yet to get quoted a case and a desion that went against the Constitution because SCOTUS said so.
Well, I could be a dick and point out Plessy, but that would undercut my own argument about how the interpretation of the Constitution is based in large part on the society interpreting it. Plessy, which seems horrendous to me today, may well have been reasonable at the time it was written. At that point, not being racist was the oddity instead of the norm--morally repugnant, I know, but that's the way it was, and so Plessy was a product of its time, just as Brown v. the Board of Education was a product of its time.

Stench from the bench. One example is sentencing someone to death without a crime ever being committed-Terry Schiavo. Making up new laws by going around the legislature.
You need to let people like that die. You never know which one could be Keanu Reeves.

The judges are trying to destroy the country by disagreeing with me! My views should be the basis for all constitutional interpretation, and nothing else! Screw precedents and reason and all that, I WANT MY WAY!!!!!!!!

Activist judges are responsible for such abominations as schools where white kids can be in the same classroon as black kids! And things like Roe vs Wade! What is this country coming to? Next, they'll be questioning the constitutionality of the Patriot Act (http://www.washingtonpost.com/wp-dyn/articles/A59626-2004Sep29.html) (what could be more unpatriotic than that??)

It is shameful that there have been so many posts without one singel person attempting - in any meaningful way - to respond to the question of the OP. It tells me that most here are more interested in propigating their own opinion without being bothered by anything resembling fact - so let me be the first to spoi this bitch session.


Actually Nazz did answer that:

It's a right-wing strawman that gets trotted out whenever gays aren't put in jail or "christians" aren't allowed to force biblican doctrine into the public school curriculum.

Activist judges are those that vote against your stand on the subject.

Activist judges are those judges that do their damn job and interpret the law.

Actually Nazz did answer that:

It's a right-wing strawman that gets trotted out whenever gays aren't put in jail or "christians" aren't allowed to force biblican doctrine into the public school curriculum.
To be fair, my answer was snarky.

Accurate, but snarky. ;)

Well, I could be a dick and point out Plessy, but that would undercut my own argument about how the interpretation of the Constitution is based in large part on the society interpreting it. Plessy, which seems horrendous to me today, may well have been reasonable at the time it was written. At that point, not being racist was the oddity instead of the norm--morally repugnant, I know, but that's the way it was, and so Plessy was a product of its time, just as Brown v. the Board of Education was a product of its time.
I would argue not so. Plessy was a bad decision, yes. It's interpretation is strained and viewed (now) as wrong. However, Plessy was not a bit of legislating from the bench as has been bandied about. It was grounded in law, and the Constitution as it was read at that time. It was legally based, the fact that legality changed is proof of the living document status of the Constitution.

I would argue not so. Plessy was a bad decision, yes. It's interpretation is strained and viewed (now) as wrong. However, Plessy was not a bit of legislating from the bench as has been bandied about. It was grounded in law, and the Constitution as it was read at that time. It was legally based, the fact that legality changed is proof of the living document status of the Constitution.
I agree completely--Plessy was a product of its time, just as Lawrence v. Texas is a product of ours. But people like Scalia have shit fits over Lawrence and call it judicial activism, when really all it is is an admission that the world has changed and our understanding of our constitution has changed with it.

I agree completely--Plessy was a product of its time, just as Lawrence v. Texas is a product of ours. But people like Scalia have shit fits over Lawrence and call it judicial activism, when really all it is is an admission that the world has changed and our understanding of our constitution has changed with it.
Scalia enjoys being the underdog and throws hissy fits when the court doesn't go along with him. Now that the court has swung more conservative, I predict he's not going to have nearly as much fun because he can't pretend to be the poor picked on member of the court.

Scalia enjoys being the underdog and throws hissy fits when the court doesn't go along with him. Now that the court has swung more conservative, I predict he's not going to have nearly as much fun because he can't pretend to be the poor picked on member of the court.
Bush v Gore must have been particularly bittersweet for him--on one hand, he got to crown a president, and few people get to do that. On the other, he shot his chance to be Chief Justice right out the window when he did it.

What's the difference between judicial review and judicial activism? Not much.

Are the following acts of judicial review or activism:

striking down an unconstitutional law
ignoring precedent of a higher court
ignoring precedent of a similar court
disagreeing on the "correct" interpretation of the law
making new law
having an ulterior motive for a decision


To some, these acts are proper judicial review while others see them as blatant activism: it all depends on each individual's interpretation of the separation of powers.

So, are the Miranda warnings (i.e., "You have the right to remain silent...."), Roe v. Wade, and Lawrence v. Texas the results of activism or judicial review? In my opinion, the constitutional right to un-enumerated liberties (i.e., "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") allows for the courts, as the interpreters of the constitution, to broaden the liberties actually allowed to the citizens.

Seriously?

Another thing I don't get: "activist judges" get bashed for not ruling in favor of public opinion. How the hell is that any less neutral than judicial activism?:headbang:

Rose Bird was a good example of an activist judge

http://en.wikipedia.org/wiki/Rose_Bird

Must be because conservatives are "strict constructionists" which means that they try to go with the original intent of the Founding Fathers. Liberal "progressives" are activist judges because they try to interpret the Constitution in a way other than how it was written.

Scalia, Thomas and other conservatives are often "activists" as much as the liberals. For example, Scalia with his view that all rights must be enumerated in the Constitution (i.e., disregarding the Ninth Amendment) and Thomas ignoring stare decisis.

From this article (http://www.redding.com/redd/nw_columnists/article/0,2232,REDD_17528_4236945,00.html):
The Bill of Rights, Amendment IX, says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because a particular right of the people has not been listed in the Constitution does not mean it does not exist. The right to privacy is such a case.

In contrast to this, Justice Antonin Scalia said, "Every time the Supreme Court defines another right in the Constitution it reduces the scope of democratic debate." (Speech at the University of Vermont, May 2005).

We won't quibble with Scalia about whether the Supreme Court "defines" a right or simply recognizes a right. In any case, in his obvious opposition to Amendment IX of the Bill of Rights, Justice Scalia establishes himself as a judicial activist of the rankest kind.

Now, What about things like - drunken driving, manslaughter, sexual harassment, prayer in school, abortion, pornography, etc. Are all of these also things which you believe should be arbitrated not only by law but also a multitude of justices personal viewpoints?
Funny you should mention that... (http://www.pbs.org/newshour/forum/april98/harass4.html)

Posner (http://www.law.uchicago.edu/faculty/posner-r/) (as an example of an activist judge, you check whether you would agree) is a brilliant man. He is in the position he is in precisely because of his own ability to think and decide, not because of a law that put him there. Why would you choose such a man and then tell him to leave his talent outside?

Actually Nazz did answer that:

It's a right-wing strawman that gets trotted out whenever gays aren't put in jail or "christians" aren't allowed to force biblican doctrine into the public school curriculum.


this? attempting - in any meaningful way - to respond to the question of the OP. It tells me that most here are more interested in propigating their own opinion without being bothered by anything resembling fact

No - he really didn't. It saddens me that you would consider something like that remotely adequate. You really oughta ask for a refund for any education you think you've recieved.

Funny you should mention that... (http://www.pbs.org/newshour/forum/april98/harass4.html)

Posner (http://www.law.uchicago.edu/faculty/posner-r/) (as an example of an activist judge, you check whether you would agree) is a brilliant man. He is in the position he is in precisely because of his own ability to think and decide, not because of a law that put him there. Why would you choose such a man and then tell him to leave his talent outside?


I selected those topics on purpose - because many of them have fallen into speculative areas where it becomes impossible to tell at any givn momeny if you are or are not compliant with the law. You don't know until AFTER the trial...

"Activist" judges that supposedly "legislate from the bench" is a big load of BS. It's code for "judges that don't support the fundamentalist agenda." No judge legislates from the bench, no judge ever has, and no judge ever would. They made it up to scare people.