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Judicial Activism; Surprising supporters
Topic Started: Oct 6 2005, 06:50 AM (112 Views)
Colo_Crawdad
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Lowell
While doing a rather limited bit of research to help students with the upcoming Lincoln-Douglas debate topic, "Resolved: Judicial activism is necessary to protect the right of American citizens," I found the expected excellent articles by authors such as Thomas Sowell and Bork who oppose judicial activism and a couple of articles in support of judicial activism that surprised me. One is by Libertarian author, Damon W. Root who writes the article Unleash the Judges, The libertarian case for judicial activism

Quote:
 
Speaking to the Heritage Foundation in 1996 on the topic of “judicial activism,” the conservative commentator Pat Buchanan denounced the Supreme Court as a “judicial dictatorship”; the Court’s beneficiaries, he said, were “criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers.” In his influential 1996 book Slouching Towards Gomorrah: Modern Liberalism and American Decline, former federal appeals court judge Robert H. Bork declared that “the Supreme Court has usurped the powers of the people and their elected representatives.” Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state’s anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature’s “hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”


Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.



The second unexpected supporter of judicial activism is James L. Huffman writing for the The Heritage foundation. The article's title: A Case for Principled Judicial Activism.

Quote:
 
Most political conservatives believe in the principle of judicial restraint. I share that conviction, but I also believe in judicial activism. My purpose today is to make a case for principled judicial activism. In the process I will argue that the traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the United States Constitution.


Both articles are rather lengthy. I Just thought I would share.
"WE HAVE MET THE ENEMY AND HE IS US." --- Pogo
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cmoehle
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Chris - San Antonio TX
Interesting, and will read at length tonight.

One preliminary comment. Judicial activism is much overused, and usually means no more than a judge decided a case in a disagreeable way. It rarely has anything to do with judges creating laws or extra-constitutional rights. It's basically the same ephemism that liberal has been and conservative is becoming.
Politics is the art of achieving the maximum amount of freedom for individuals that is consistent with the maintenance of social order.
--Barry Goldwater
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tomdrobin
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quote: "The Presumption for Democracy. In an odd sort of way, conservative judicial restraintists have joined with John Hart Ely in the belief that judicial review is rooted in the protection of democracy. But why this persistent concern about democracy?"

I would have to disagree with the author on this point. Judicial restraintists have the belief that judicial review is rooted in the protection of individual rights spelled out clearly in the constitution and the bill of rights. He would have judicial review be rooted in the protection of individual liberty, that which is such a broad term that it could be used to protect "new rights" not specifically spelled out in the constituion. New rights that would be favored by conservatives or libertarians in some instances and liberals in others. These rights if necessary should be instituted by amending the constituion, rather than being implemented by the judiciary IMO.
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cmoehle
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Chris - San Antonio TX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


Judicial--as well as legislative and executive--restraint would be mindful of those amendments.
Politics is the art of achieving the maximum amount of freedom for individuals that is consistent with the maintenance of social order.
--Barry Goldwater
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tomdrobin
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cmoehle
Oct 7 2005, 10:21 AM
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Chris
The problem with that clause is, that a very activist judiciary will validate requests for rights that reach the hypothetically extreme. How about these as examples. The right to have food. The right to have shelter. The right to have clothing. All meaning basically that whatever your input is or isn't, you would have a right to be taken care of. Far too many in this country have this attitude IMO. And, the list could go on and on. The right to a fair wage. The right to a beautiful woman (just had to slip that one in there).

There are two schools of thought on rights or entitlements. One group feels the proper way is to ensure equality of opportunity and then it is up to the individual to create their substainance by their own ambition and ability.

The other school of thought is wealth exhists on it's own like a big pie, and it should be divided up fairly, through such means as entitlements/rights or preferences in hiring and admitance to learning instituions.
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cmoehle
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Chris - San Antonio TX
Tom, I agree on the clause being taken by an activist judiciary to create implied rights out of whole cloth, as well as deny them, your examples are good one, and here's some more: the right to deny choices like marriage between gays, like protecting your health and ending a pregnancy, or like desiring to die with dignity.

Isn't the point of that amendment to say the federal government, legislative and administrative let alone judicial, has no business whatsoever deciding unenumerated rights?

I'm not sure local government has any business there either.
Politics is the art of achieving the maximum amount of freedom for individuals that is consistent with the maintenance of social order.
--Barry Goldwater
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