As someone who has argued with Ed over judicial activism and whether or to what extent it is occurring, I think this is an opportune time for me to mention that I agree with Krauthammer and Olson (and Brayton) that Delay and Cornyn's attacks and threats have been over the top.

As a matter of construction did we not learn early on about topic sentances and the importantance of the first paragraph? Selective quotation will mislead readers who don't see the beginning of the column. As for Mr. Olson, he is a trimmer.

Krauthammer has it exactly wrong. Impeachment is precisely the right remedy for judicial usurpation. See Others Rob You With A Fountain Pen

I view Dobson and his ilk as part of a Counter Enlightenment movement that is gaining strength in this country. Eroding the judiciary is one of the things that is necessary to enhance the power of those who owe their political strength to the deft use of religion in public life.

Obviously the roots of our common law judiciary predate the Enlightenment by several centuries, but in my view, the two go hand-in-hand, particularly given how our government was structured by the Framers. Our judiciary is quite a hinderance to those who claim to know the will of God and who claim to have the authority and obligation to enforce that will.

It is also quite a hinderance to those who thought they knew the law. It is also giving to Con Law course all the cachet of Labor Law courses and, for the same reason.

Eh? Your comment is as cryptic as your identity.

pbswatcher wrote:

Krauthammer has it exactly wrong. Impeachment is precisely the right remedy for judicial usurpation.

Perhaps if you could give a coherent definition of "judicial usurpation" (or "judicial excess", which you used as a synonym in your post), this could be debated. As it is, it's just so much inflated rhetoric, like your contention that the judiciary would "destroy the other two branches of government."

I am never one to put words in anon's mouth, but my take on its comments is that it says that the attractiveness of the Constitution and of Con Law was that it had some stability and solidity as a large, but generally congealed, body of law. You can KNOW the Constitution. That is dissolving.

I saw some of a discussion on C-SPAN involving Scalia, O'Connor, and Breyer from the Nat'l Archives last week in which Scalia made some points along these lines. Scalia's thoughts might add something to this discussion, but I must paraphrase in large part - From an originalist's perspective, part of the glory of the Constitution is that it doesn't change. You don't need to look at social studies or international jurisprudence to see what people like before declaring what the Constitution is or what it says. "It says what it says." When we see what has been happening for the past generation or so, originalists get concerned that the judiciary is not only a declaratory body but also a policy-making body that is not accountable to the people like our other policy-making bodies are. This frustration builds over time and reaches a break point, at which time originalists want to make this new policy-making body accountable to the people. Perhaps we are populated with more originalists than initially thought.

I agree with Scalia that the court as a policy body is threatening to our traditional manner of decision-making and the resulting desire to "fight the power" (as Chuck D might say) is only natural. DeLay and Condon are harsh dudes, but the idea of taking the Constitution back is inviting.

I wonder what Scalia thinks of John Marshall. I think Marshall would disagree that the Constitution is a dead document, cast in stone, saying what it says - no more, no less. In McCulloch v. Maryland Marshall, after all, admonished that "we must never forget that it is a constitution we are expounding."

The term constitution implies something living and organic rather than something static. It is the thing that gives life to our body politic.

Quoting from Marshall in McCulloch v. Maryland:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation.

Justice Scalia gives talks and there is a Q & A-the question about Marshall is on point. Someone should ask that question of originalists. One possible response would be to admit that Marshall was the original judicial activist in Marbury vs. Madison for which he took considerable heat at the time-perhaps rightfully so. Scalia's talks are on CNN and PBS and they are masterful. Still, one seeks a bit more grounding for his views. We have all been sucked in by very good speakers, carried along by their grasp and views later to find some omissions or difficulties glossed over.