activist judges

[Briareos]

I'd rather have judges who strictly interpret the constitution then ones who just make it up as they go along. Yes times and atitudes have changed alot in 200 years but you know what if something is so improtant it needs a constituional protection then get a constitutional amendment added. The founding fathers knew that things change and new rights might need to be addressed. They added a mechanism for it.

Under what Steven wants we don't have a constitutional system anymore we have 3 branches of legislatures.

[Steven Grant]

Show me a judge that strictly interprets the Constitution. Know why they can't? It's in the word "interpret." No matter what they do, they're interpreting it, even if they're only going by previous interpretations.

There are any number of right wingers now clamoring for the President to nominate a right wing judge who's anti-abortion and "Pro-Christian." To the extent where they're already protesting Gonzales (not that there aren't plenty of reasons to not want him on the Supreme Court) because he has judged on the pro-choice side of abortion issues in the past. What's any of that got to do with the Constitution? I don't recall any of founding fathers mentioning abortion or even the Christian faith anywhere in the Constitution.

Besides, the whole "strict interpretation" thing originated around the Reagan era when there were many calls on the far right for returning an "unamended" Constitution, which is still the ultimate right wing claim regarding the founding fathers: that their original intent was the UNamended Constitution. Which is absolutely true. The amendments, i.e. the Bill Of Rights, was added in order to stop widespread revolt. The "unamended" Constitution scheme met with bad response, so they packed it away for awhile and returned with this whole "strict interpretation" canard. "Strict interpretation" is code phrasing for who gives a rat's ass how people are affected, let's push a whole bunch of right wing agendas. Sounds good, though.

[WatsonGlenn]

Show me a judge that strictly interprets the Constitution. Know why they can't? It's in the word "interpret." No matter what they do, they're interpreting it, even if they're only going by previous interpretations.

If one is going by previous interpretations then one is not interpreting. Judges should avoid making new law. That is all conservatives ask.

[bartl]

There are any number of right wingers now clamoring for the President to nominate a right wing judge who's anti-abortion and "Pro-Christian." To the extent where they're already protesting Gonzales (not that there aren't plenty of reasons to not want him on the Supreme Court) because he has judged on the pro-choice side of abortion issues in the past. What's any of that got to do with the Constitution? I don't recall any of founding fathers mentioning abortion or even the Christian faith anywhere in the Constitution.
Well, I'm not surprised, considering that "fundamentalist Chrsitianity" translates, in the real world, into, "Take the literal word of the Bible, as written in the original English, as Absolute Truth(tm), except when it disagrees with our prejudices." For example, the only thing the Bible says about abortion is in the Old Testament, and THAT involves when a third party kills a fetus in a pregnant woman without the woman's consent. And I've seen LOTS of fundamentalists eating ham sandwiches (forbidden according to the Old Testament, and the statement which is INTERPRETED as Jesus saying that those laws were not valid refers to washing your hands before eating, and it is only an INTERPRETATION that extends it to the kosher laws.

Similarly, even if you take "original intent", one of the major arguments by the opponents of the Bill of Rights was the fear that some idiots in the future would assume that they were all-inclusive; the compromise was the 9th Amendment, which the "strict constructionists" conveniently ignore.

On the other hand, there are problems on the other side, as well. First of all, there is the confusion people in the government LOVE to cause (one of the things I noted in the Clinton-Lazio debates in the 2000 New York Senate race was the BOT of them bought into this) has to do with the fact that the Consttution does not grant rights to anybody except the government. It RECOGNIZES pre-existing rights that belong to the people, and that the government has no business touching (although even these have certain limits, such as the "clear and present danger" case). One question is the responsibility of government to facilitate these rights. So, for example, in the case of abortion, the Supreme Court cannot make abortion illegal; at most, they can allow states to make laws against abortion. In addition, it is misunderstood by many on the left that the Supreme Court has declared a "right to abortion", as a separate right, when it was declared as a subset of other rights; there is a major difference between forbidding laws against them, and requiring laws making them more accessible (back on the other side, if equivalent rights ARE made more accessible, then there are problems with not giving the same accessibility to abortion).

There is nothing in the Constitution about judicial review; it just kind of happened, and enough people agreed with it that it became a fait accompli. However, frankly, the Supreme Court is more of a political body than a judicial body; it is only in recent years that even having a law degree was considered to be a requirement for being on the Supreme Court. By the time a case has gotten to the Supreme Court, there are enough good legal arguments on either side to make a decision for either side. The justices on the Supreme Court make a political decision, and then use the arguments that justify their decision. There is nothing sacred about Supreme Court decisions; if a later Supreme Court disagrees, they can reverse it (although I have heard right-wingers using Brown vs. Board of Education as an example; Plessy vs. Ferguson limited segregation rather than allowing it, so Brown can be considered another step in the same direction as Plessy rather than a reversal).

The final consideration is the continued travesty apparently supported by both the Right and the Left, which is to extend the power of the Federal Government far beyond what a reasonable reading of the Constitution would grant. The power to regulate interstate trade has been extended to, well, just about anything, even when no insterstate transaction has taken place. The power to tax has become the power to overtax and give back some of the funds, and put conditions on those funds which would otherwise be outside the power of the federal government (such as cutting off highway funds from states which have drinking ages of less than 21).

In terms of freedom of religion, the problem has more to do with hidden agendas than anything else. You have the fundamentalists trying to do an end run around the Constitution to set up a framework to turn the country into a Christian theocracy, and you have the anti-religionists trying to extend the establishment clause to the point of prohibiting religion (well, at least Christianity), turning some brand of atheism into a State Religion.

Frankly, I'm in favor of letting the President choose his candidates, letting a large minority who opposes those candidates filibuster, and letting the government shut down until there is a "yes or no" vote or the other side gives up. Unfortunately, we have this weird system now where a filibuster doesn't require actual debate or stopping of other work by the Senate, which, frankly, I don't understand at all, as it changes the filibuster from an extension of the right to debate into a right in and of itself (can anybody explain it to me?).

[Briareos]

Show me a judge that strictly interprets the Constitution. Know why they can't? It's in the word "interpret." No matter what they do, they're interpreting it, even if they're only going by previous interpretations.

There are any number of right wingers now clamoring for the President to nominate a right wing judge who's anti-abortion and "Pro-Christian." To the extent where they're already protesting Gonzales (not that there aren't plenty of reasons to not want him on the Supreme Court) because he has judged on the pro-choice side of abortion issues in the past. What's any of that got to do with the Constitution? I don't recall any of founding fathers mentioning abortion or even the Christian faith anywhere in the Constitution.

Besides, the whole "strict interpretation" thing originated around the Reagan era when there were many calls on the far right for returning an "unamended" Constitution, which is still the ultimate right wing claim regarding the founding fathers: that their original intent was the UNamended Constitution. Which is absolutely true. The amendments, i.e. the Bill Of Rights, was added in order to stop widespread revolt. The "unamended" Constitution scheme met with bad response, so they packed it away for awhile and returned with this whole "strict interpretation" canard. "Strict interpretation" is code phrasing for who gives a rat's ass how people are affected, let's push a whole bunch of right wing agendas. Sounds good, though.


Considering that liberal judges aren't even bothering to use the constitution at all for the reasoning in their decisions (In the recent decision overturning the death penalty for people who murdered when they were minors. Kennedy? (might have been souter or bryer) said that "International concensus" was part of his reasoning.

[Gingold]

Considering that liberal judges aren't even bothering to use the constitution at all for the reasoning in their decisions (In the recent decision overturning the death penalty for people who murdered when they were minors. Kennedy? (might have been souter or bryer) said that "International concensus" was part of his reasoning.


Kennedy's a liberal judge?

[fumetti]

If one is going by previous interpretations then one is not interpreting. Judges should avoid making new law. That is all conservatives ask.

Agreeing to uphold a previous interpretation is the same thing as making a brand new (identical) interpretation. It's an interpretive decision either way.

[fumetti]

The definition of "activist judge" is simple: one that rules against you.

While not every ruling against the GOP/cons is an "activist" ruling, that IS the only time they ever use the word.

Notice that none of the GOP/cons or their punditry stepped up to cry "activist judge!" regarding the Connecticut land swindle (I mean eminent domain) ruling. The Constitution clearly says for "public use" not "public good." There is no public use when it's handed to private ownership, regardless of the weak claim that it will benefit the area in vague, indirect ways. The GOP has stepped up to offer LEGISLATIVE remedy, but they avoided accusing the Supreme Court for its new "interpretation" of "use." Y'see, the SC wasn't being "activist" because it benefitted a bunch of rich guys.

(And it doesn't matter how the individual justices ruled. When a GOP-appointed judge hands down an "interpretive" ruling the GOP/cons don't like, he/she's still branded as "activist." The label is only applied based on the ruling, not really who ruled it.)

[fumetti]

Another "interpretation" the right-wingers don't criticize is the SC decision that declared the death penalty constitutional (I don't remember the name of the case).

One of the judges argued that the 8th amendment says "cruel AND unusual punishment," focusing heavily on the word "and." Killing convicts might be cruel, but it's not "unusual." The judge was INTERPRETING that the conjuction meant both conditions must be met as a precondition for capital punishment. But that's just one interpretation. It could have meant both conditions rule out capital punishment if EITHER applied. (Kind of like a store that says "Visa and Mastercard accepted." The word "and" actually means "or.")

This relates to Briareos's argument against outside influence on judicial opinions. Where did the court get the idea that capital punishment was not unusual, except by examining the standards of other nations?

[Wig of Doom]

The same day that Steven published this week's PD, a new york times op-ed (http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html) discussed the question of judicial activism. It gave the percentages of times that justices on the current Court voted to strike down Congressional statutes:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

It also refers to an 1867 court opinion that referred to "striking down Congressional legislation as an act 'of great delicacy, and only to be performed where the repugnancy is clear.'"

Now, _if_ you define judicial activism as interfering with legislation in one way or another, then it seems clear that the correlation between amount-of-conservatism and activism is nearly 100%. The only justice who is not where you'd expect him to be is Kennedy.

I should add that Scalia, who talks much more often than any other justice does in oral arguments as well as reading his opinions from the bench more often, makes a great deal out of the idea that the people's will--in the form of legislation--is not to be defied unless it clearly violates the Constitution. He brings this up all the time when the laws are on the side with which he agrees. He just appears to actually observe this notion less than any of the liberal justices.

[NatGertler]

Considering that liberal judges aren't even bothering to use the constitution at all for the reasoning in their decisions (In the recent decision overturning the death penalty for people who murdered when they were minors. Kennedy? (might have been souter or bryer) said that "International concensus" was part of his reasoning.Talking about this case (http://www.supremecourtus.gov/opinions/04pdf/03-633.pdf), eh? Well, you've got a number of things wrong.
Kennedy, as someone else pointed out, ain't a liberal.
The term "international consensus" (or "concensus") appears nowhere in Kennedy's opinion. It appears only in Sandy D O's opposition statement.
Far from not "bothering to use the constitution at all for the reasoning" in this decision, the decision is heavily grounded in the eighth and fourteenth amendments.

You may wish to reconsider the sources you use for informing yourself; they seem to lead you astray frequently.

[fumetti]

Well, I'm not surprised, considering that "fundamentalist Chrsitianity" translates, in the real world, into, "Take the literal word of the Bible, as written in the original English, as Absolute Truth(tm), except when it disagrees with our prejudices."

It's funny how what qualifies as "the written word of God" these days can't actually be found in the Bible. Jesus--a total pacifist--never drew a distinction when he said "do not kill." Yet certain killing is okay with our churches (so long as the GOP says it's okay).

Similarly, even if you take "original intent", one of the major arguments by the opponents of the Bill of Rights was the fear that some idiots in the future would assume that they were all-inclusive; the compromise was the 9th Amendment, which the "strict constructionists" conveniently ignore.

To no one's surprise...

In addition, it is misunderstood by many on the left that the Supreme Court has declared a "right to abortion", as a separate right, when it was declared as a subset of other rights;

As I understand Roe v Wade, the ruling was more about privacy rights and gov't jurisdiction. (It had nothing to do with establishing personhood status a la Dred Scott, as Bush said in the debates.) You'd think the conservatives would appreciate the argument that the government's juridiction had to stop somewhere. Roe either ruled or affirmed that it stopped outside the individual's body (don't know if that was established before Roe).

This limitation has been poorly upheld, tho. Drug laws and hate crime laws reach inside your body.


The power to tax has become the power to overtax and give back some of the funds, and put conditions on those funds which would otherwise be outside the power of the federal government (such as cutting off highway funds from states which have drinking ages of less than 21).

The federal gov't has bought back the 10th amendment. Or the states have sold it, take your pick.

In terms of freedom of religion, the problem has more to do with hidden agendas than anything else. You have the fundamentalists trying to do an end run around the Constitution to set up a framework to turn the country into a Christian theocracy, and you have the anti-religionists trying to extend the establishment clause to the point of prohibiting religion (well, at least Christianity), turning some brand of atheism into a State Religion.

A great book related to that is Mikhail Bakunin's "God and the State." He makes a very valid argument that getting rid of just one will not free you, that you must get rid of both if you want free from either of them.

Without the state, then religions would take complete control (and not in YOUR best interest, but in the interest of those who controlled the religion). They would become the source of authority in all things, both spiritual and secular--including science, as we've already seen in history. On the other side, if you have the State but no religion then the state ITSELF would become the source of authority on all things spiritual or moral. There are few examples of this in history, but it's no challenge to imagine that the state would define proper spirituality and morality not in your interest, but in the interest of those who controlled the state. Notice the modern shift towards merging wealth and piety? That God rewards hard work with wealth--thereby sanctifying capitalism? We're seeing the downside to removing religion from gov't: the gov't functions on some other moral authority. And today's morality is money. ("Nothing personal. It's just business." As you become homeless to make way for a parking lot.)

Before the Republicans realized they could ride the (disgruntled) religious pony all the way to political supremacy, I thought we had a proper balance of religion and gov't in society. The state focused on governance and the churches focused on the soul. Now, the more activist churches (overrun by Republican Trotskys) are so political they're arguing US Senate procedural rules from the pulpit. But it's not a matter of the churches trying to take over the gov't, the Republicans have taken over the churches and are using it to take over the gov't. So now the fight "against churches" isn't just about spiritual authority, but about preserving democracy.

Added:
If you don't believe there's a concerted effort to merge God and Money, check out this ad: http://right-thoughts.us/images/uploads/christianloans.jpg

What's more, there is a church ad that's shown at the local movie theater (the ads that show before the previews come on) that says: "Touching lives corporately." WTF does THAT mean?

[Wig of Doom]

It's funny how what qualifies as "the written word of God" these days can't actually be found in the Bible. Jesus--a total pacifist--never drew a distinction when he said "do not kill." Yet certain killing is okay with our churches (so long as the GOP says it's okay).

As long as you don't mean "completely nonviolent" when you say "pacifist." He did some ass-kicking in the temple, don't forget. (Bah, and now I have Devo going through my head.)

[Magneto_X]

Aren't most judges republican? I know the judge in the Terry Schiavo case was.

[fumetti]

As long as you don't mean "completely nonviolent" when you say "pacifist." He did some ass-kicking in the temple, don't forget. (Bah, and now I have Devo going through my head.)

That story might be considered by some as violent. That scene is a bit out of character with everything else about Jesus. I guess when people were soiling his dad's house, the lamb in him took a vacation. (Maybe it was done for some calculated purpose.)

The central message seems to be Jesus disagrees so strongly with mixing church and money that even HE got so pissed He couldn't "turn the other cheek." Imagine what wrath God would have for it?

Somebody in our churches needs a Bible lesson that merging God and Money is NOT a very "Christian" idea.

(Here's a funny spoof of what the Temple response would have been, were this to have happened now: http://bechurch.net/archives/000393.php)

[bartl]

The definition of "activist judge" is simple: one that rules against you.
I would define an activist judge as one that requires specifc performance from the government outside of the judge's defined powers.

Not that there's anything necessarily wrong with that.

[bartl]

If you don't believe there's a concerted effort to merge God and Money, check out this ad: http://right-thoughts.us/images/uploads/christianloans.jpg
I get spam from them all the time.

BTW, as I believe I have made clear, I believe that the drug laws and the hate crime laws are fundamentally unconstitutional (as does the well-known Communist attorney, Ron Kuby, who has surpassed Michael Moore as my favorite Communist, especially when Michael Moore dropped the Communist references from his website).

[bartl]

As long as you don't mean "completely nonviolent" when you say "pacifist." He did some ass-kicking in the temple, don't forget. (Bah, and now I have Devo going through my head.)
Of course, "Thou shalt not kill" is an example of the Bible as written in the orginal English.

In Hebrew, it's "Don't murder"; the word for "murder" and "kill" are distinct from each other. And, in the Talmud, which observant Jews consider to be of equal importance to the Old Testament, there are cases where abortion is REQUIRED.

[Steven Grant]

Besides, in ancient tribal cultures, the taboo against killing/murder (which pretty much every tribal group had, not just the Hebrews) was understood to refer to members of the tribe, since those outside the tribe weren't technically considered human. (Even women who married into the tribe -- marriage being "sacred" mainly because it secured alliances between tribes, and breaking the marriage could break the alliance -- were considered at best second class citizens and at worst spies and potential traitors, which led to the popular figure of the "stepmother" in fairly tales. It's no coincidence that in virtually all instances where the stepmother appears, no mother is ever seen; in the originals of the fairy tales, there is no stepmother but a mother, who is seen as actively menacing toward the children - in HANSEL AND GRETEL, in instance - and sometimes envisioned as an evil, destructive with. This is because popularly in Germanic tribal societies, where the wife often came from without the tribe, the father was seen as the only TRUE parent of the children, who were not to trust their mother because she represented the alien, the other, the outsider.) (This wasn't helped by a faulty understanding of human anatomy and the reproductive process either.)

Anyway, in ancient tribes you "murdered" members of your own tribe and it was transgressional because it weakened the tribe. You "killed" outsiders and, all other things being equal, it was generally not considered transgressive behavior.