Unenumerated Rights and Legitimate Authority
This began as a response to a comment by Eric Seymour in a post below, but I’m moving it up here because the response became so long and delved into the details of constitutional interpretation so deeply that I thought it deserved to be its own post. It is addressed specifically to him, but I do not want anyone to think that I am picking on him specifically. Eric does a good job of presenting what is the most commonly heard conservative argument on “judicial activism” and the limitations on the government and the individual. You may also want to read the whole series of comments at the link above to get some background before reading this, as I make some assumptions about Eric’s position based upon earlier statements he made in the exchange between us. I think this is a pretty good representation of the basic disagreement between the conservative and libertarian positions on constitutional interpretation (recognizing that those labels are always incomplete and sometimes incorrect as well), and hence a good opportunity to examine both positions. Eric wrote:
It sounds like you’re arguing that by definition there can be no such thing as judicial activism. I wonder, though, if the courts were to shift to an understanding of the 1st amendment more consistent with conservative opinions–if, for example, they started ruling that Ten Commandment displays and nativity scenes on public property, prayers at public school events, etc. were acceptable–whether you might change your tune.
No, my position is not that there can be no such thing as judicial activism by definition. My position is that as the phrase is used, it’s never given a coherent definition that is adhered to consistently. And this conversation is an excellent example of that. The closest you have come to defining the phrase is that you seem to think that any time a ruling is based upon an unenumerated right drawn from the application of general principles in the text, as opposed to a specifically enumerated right, that amounts to “judicial activism”. But that simply isn’t a coherent position for the reasons I stated above.
First, the Constitution demands such reasoning by necessity. And you need to go back to one of the central debates surrounding Constitutional ratification to understand this. The strongest argument against ratifying the Constitution at the time was the lack of a bill of rights. Some of the state conventions in fact refused to ratify it without a promise that a bill of rights would be attached to it. The Federalists responded by arguing that since you cannot possibly list all of the rights an individual has it might be dangerous to list some of them because then all other rights not listed would be viewed as fair game for government intrusion (which appears to be exactly the position you’re taking). Hamilton made this argument in Federalist 84. James Madison, who was initially opposed to a Bill of Rights for this very reason but was convinced of the need for one by Jefferson, came up with a way to have a bill of rights without that danger. In presenting his list of amendments to the Congress, he said:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”
The fourth resolution was what we now know as the 9th amendment, which specifically rules out the position that any right not listed specifically is within the government’s power to regulate as it sees fit. There can be no doubt, then, that there are specific rights not mentioned in the bill of rights that must be protected against government intrusion. Therefore, the argument that any ruling that is not based on a right specifically enumerated is “judicial activism” or “legislating from the bench” simply is not a coherent argument. At the very least, one must offer some criteria by which to determine when the protection of an unenumerated right is legitimate and when it is not legitimate in order to justify such an argument, and that criteria must be specific to the case at hand. The general statement that if it’s not listed specifically then the courts are being “activist” in “creating a new right” is prima facie incoherent and contradictory to the history of the text. In this latest reply, however, you seem to be shifting the definition a bit to make it more vague and undefined. You say:
Just like in cases regarding “states’ rights,” I of course instinctively object more strongly when I disagree with the outcome, but for consistency’s sake I must object to any case where a court has overstepped its authority.I will grant that some amount of what you might call “penumbral reasoning” is necessary, but I personally think that has gotten way out of hand to the point where judges are substituting their personal philosophies for sound Constitutional interpretation. It is a question of degree, then, not of type. But that does not mean that any objections are invalid.
I think we’re on to something here, but it needs to be stated much more objectively in order to have any real meaning. As it is, it sounds very much like Justice Stewart’s famous statement about pornography, that he could not define it but “I know it when I see it.” I do agree with you that it is a question of degree, and clearly there are instances where a ruling seems entirely divorced from the text. But we have to have some criteria for distinguishing between legitimate and illegitimate assertions of authority. And you must keep in mind that the question is not whether an individual has the right to do X; the question is whether government has the legitimate authority to prevent them from doing X. The founding principle of our system is that we are endowed with rights that are inalienable, that those rights exist prior to the formation of a government, and that we create governments for the purpose of protecting those rights that we already have. This means, at a minimum, that the burden of proof is on the government (i.e. the majority) to show that it has a legitimate authority to control a given action rather than on the individual to prove that they have a right to do something.
Once we can agree, as it seems we have, that (at least some) unenumerated rights are real, and agree, as it seems we have, that we must therefore have some criteria for distinguishing between legitimate authority and illegitimate authority, then we can move on to the question of what that criteria should be and compare it to the criteria that the court has used to make that determination in the past and today. And here I will be forced to characterize the standard conservative position, and I will attempt to do so without caricature. A good place to start would be to look at the Lawrence decision, because this is an excellent example of a ruling that upheld an assertion of unenumerated rights that most conservatives labeled “judicial activism.” The Lawrence decision was the 2003 ruling that struck down a Texas law that made homosexual sodomy between consenting adults illegal.
Conservative response to this decision was pretty standard and predictable. They argued that this was an example of “judicial activism”, where the court “discovered” or “created” a previously non-existent “right to homosexual sodomy” that had never before been found in the text of the Constitution. We’ve already discussed and dismissed the notion that merely because a right is not specifically mentioned it does not exist, so that by itself doesn’t tell us much. We have to go one level deeper, to the question of why conservatives believe that this unenumerated right was not legitimate. And their argument was based essentially on either their conception of the original intent of the Constitution, or the original meaning to those who ratified it, depending on who was making the argument. The argument goes essentially like this: at the time of the ratification of the Constitution, laws against homosexual sodomy were widespread in the states and were part of a very longstanding tradition of such prohibitions in Western law. Neither the founding fathers nor the citizens who ratified the Constitution that they wrote would conceive of the sphere of individual rights that they sought to protect as including a right to homosexual sodomy. Therefore, for a court to “discover” such a right in a document that they wrote and ratified is to substitute their own ideological preferences for the clear meaning of the Constitution when viewed in historical context.
It’s a compelling argument, but I believe it is fundamentally flawed. Let’s consider another case with the same arguments being used against, the Loving v. Virginia decision that struck down laws against interracial marriage. Precisely the same argument was made against that ruling, of course. Laws against interracial marriage or “race mixing” had a long tradition in Western law and were present in many of the states at the time of the ratification of the Constitution, just like laws against sodomy. Until 1967, no court had ever “found” a “right to interracial marriage” in the text of the Constitution. Yet is it not clear that laws against interracial marriage, regardless of how long they had been around, were a violation of the rights of liberty and freedom of conscience that the founders so eloquently defended in other instances? Today, only a fiend or a demagogue could seriously argue that anti-miscegenation laws were consistent with the founding principles of this nation. Who among us would argue that laws which forbid a person to marry the person they love merely because they have a different skin color are logically consistent with the principle that we are endowed with inalienable rights, among which are the right to life, liberty and the pursuit of happiness?
Here is another example: blasphemy laws. The laws of many states at the time of the ratification punished people for blasphemy or heresy. If a state attempted to punish blasphemy today, the courts would no doubt overrule such laws. And the very same argument could be used against that ruling, that there was a longstanding tradition and history of anti-blasphemy laws that were present at the time of the founding, so therefore the court is “creating” a “right to blasphemy” that the founders could not possibly have intended at the time. But who would pretend that such laws are consistent with the rights of conscience so eloquently defended by Madison, Jefferson and many others among the founders? No one, I would hope.
So the key question then comes down to this: do we govern by the principles of liberty and freedom of conscience that our founders defended so brilliantly so often, or do we govern by the compromises that they made on those principles for the purpose of viability? Should we be guided by the ideals of freedom set out so boldly in the Declaration, or by their own occasional failure to extend those principles where today they self-evidently should have done so? The founding fathers were eloquent in their statements of principle, but like all men they were still products of their time and they often failed to apply those principles in situations where no reasonable man today would deny they should have applied. So are we to be governed by their failures of application or by their far more accurate declarations of the principles of freedom and liberty?
There is still a deeper level of argument here, and it involves the burden of proof that I mentioned above. The prominent misconception is that the individual must assert a legitimate right to do something, but in reality the burden should be on the government (i.e. the majority) to show that it has a legitimate authority to prohibit them from doing so. On what legitimate basis does the government assert the authority to tell consenting adults what they may do with each other in the privacy of their own home? The courts have dealt with this question by developing a two-tiered system of review depending on how “fundamental” a right is in their estimation. Since the mid 1900s they have distinguished between “fundamental rights” and mere “liberty interests”, and have defined a fundamental right as one that is “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.” But as Randy Barnett points out in his brilliant analysis of the Lawrence decision:
The outcome of that analysis depends almost entirely, however, on how specifically you define the right being asserted. The more specifically you define the liberty at issue – for example, a “constitutional right of homosexuals to engage in acts of sodomy” – the more difficult a burden this is to meet and the more easily the rights claim can be ridiculed. Although “liberty” as a general matter is obviously deeply rooted in our history and traditions, the specific liberty to use contraceptives is not. Nor are many other liberties, especially if unknown at the founding. Even liberties that existed at the founding, like the liberty of self-medication, have not to date been deemed “fundamental” by the Court.Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: “Just where in the Constitution does it say that?” And that rejoinder is offered notwithstanding the plain language of the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Barnett goes on to note that the Lawrence decision, in a very important development, does not apply the traditional “fundamental right” analysis but instead bases itself on a general right to liberty, whereby the burden is placed where it rightly should go: on the government to justify their attempt to control the actions of the individual:
Although he never acknowledges it, Justice Kennedy is employing here what I have called a “presumption of liberty” that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow “fundamental.” In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.
And he points out that the only rationale that the state of Texas could offer for such a law was tradition and the legislature’s judgement that the action, though it did not harm any other person or deprive any other person of their rights, was “immoral” and therefore should be banned. And as Barnett points out, if we were to consider this justification to be sufficent in and of itself to justify using the coercive power of the state, there are literally no limits to the power of government:
A legislative judgment of “immorality” means simply that a majority of the legislature disapproves of this conduct. But justifying legislation solely on grounds of morality would entirely eliminate judicial review of legislative powers. How could a court ever adjudicate between a legislature’s claim that a particular exercise of liberty is “immoral” and a defendant’s contrary claim that it is not? In practice, therefore, a doctrine allowing legislation to be justified solely on the basis of morality would recognize an unlimited police power in state legislatures. Unlimited power is the very definition of tyranny.
I think Barnett is exactly correct here, and I believe that his “presumption of liberty” idea is perhaps the most important development in judiical theory in decades. By placing the burden of proof properly on the government to assert a legitimate authority rather than on the individual to assert a given right, we properly return to the principles of the nation’s founding while being able to leave behind the compromises and mistaken application of those principles. And we restore the legitimate basis of law that was laid out by Jefferson when he said:
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.
The limits of our liberty are, according to Jefferson, prescribed by the equal rights of others. Those laws which remove the freedom to act in ways that do not deny the rights of others or harm them against their will are laws which violate the rightful liberty that we are endowed with, and which no government may rightfully do away with.
21 Responses to “Unenumerated Rights and Legitimate Authority”
Very cogently & elegantly argued, and I’m certainly sympathetic. I think one way of seeing that appeal to an underlying principle of liberty is that the Constitution is, in part, based on some substantive
First, let me point out that when I said this:
It is only when a court strikes down a law based on extraconstitutional opinions and “penumbras”–that is what I call “judicial activism.” The classic case of this, of course, would be Roe v. Wade.
I did not mean to imply that any time a court rules based on something other than the explicit text in the Constitution, it is being activist. I was, in fact, stating the opposite: the court actions I find to be activist are always cases where they are striking down a law based on extra-Constitutional rationales.
Second, although you make a compelling defense of the Lawrence decision, I’m not sure that your appeal to liberty defends all cases of what conservatives complain is judicial activism. Take church/state issues, for example. In some cases, the freedom of speech and/or freedom of religion of students has been reduced on the theory that any presence of religion in public schools violates the Establishment Clause.
Finally, and most importantly, you say that you think there could be such a thing as judicial activism, but you criticize my definition as being “I know it when I see it.” I think it’s only fair, then, to ask what your definition would be.
P.S. I am completely in awe of your ability to crank out such a prodigious amount of prose in a small span of time.
Eric,
All of us “regulars” at Dispatches… are in awe of Ed’s ability to write extensive and incisive arguements on a wide variety of topics. That’s why we hang out there
Don
PS I’m in Canada so some of the articles are not directly applicable, but I always learn something from Ed’s comments.
PPS I must also thank you, as I do not see many people, in the blogsphere, who will debate a topic as well and rationally as you are doing.
Eric Seymour wrote:
I still think this needs to be stated in more objective terms. Can you give an example of a ruling with an “extra-Constitutional rationale”? Even Roe v. Wade, which you listed as an example, has a clear rationale that is grounded in the text of the Constitution (via penumbral reasoning), even if it is wrongly applied.
Okay, we can certainly discuss those cases as well. I can’t think of any establishment clause case that uses an extra-constitutional rationale. There may be differences in how the Establishment Clause should be interpreted, of course, but that is an entirely different question. Can you tell me which rulings you think reduced the freedom of speech or freedom of religion of students? I can’t think of any rulings that have done so. The rulings on school prayer and bible reading, for example, did not infringe on the freedom of students at all, they only prohibited the school (i.e. the government) from mandated or endorsing religious exercise. Individual students remain entirely free to pray, read their bible, hand out religious literature to their fellow students, and so forth, as long as they do not either force someone else to participate or disrupt normal instructional time. The courts have consistently upheld the rights of students to wear religious clothing, hand out religious literature, form bible clubs and prayer clubs and use school facilities on equal ground with any non-religous clubs. In many such cases, the rights of students were defended free of charge by the allegedly anti-religious ACLU. My point is that there is a lot of just plain false claims about what the courts have and have not ruled in such cases, and I think the courts have done quite a good job of removing official religious endorsement from schools while preserving the rights of students.
Certainly a fair question, and I’ll try my best to answer it. And to some extent I will agree that the distinction is really a matter of degree more than of kind. I wouldn’t use the term “judicial activism” myself, though I think one could offer a consistent definition of it, though no one that I know actually does. But there are cases where judges have found, for lack of a better word, fanciful rationales to reach a desired result. Some judges certainly are more inclined to stick to a pre-defined judicial theory regardless of the outcome of the case than others. Scalia, for example, is far more consistent in the type of reasoning he uses and how he applies it than, say, O’Connor, who tends to change her basis of reasoning depending on the preferred outcome (though Scalia is not nearly as consistent, I would argue, as he pretends to be).
If you want an example of a case that was decided quite wrongly and without regard for the text, I would point to the Slaughterhouse cases, which have for over a century distorted the proper view of the 14th amendment.
Thanks. I write very fast, though this essay this morning took me longer than usual. That was a couple solid hours of writing, editing and fact-checking to make sure I hadn’t cited something wrong.
Ed,
In an earlier discussion you opined that “natural rights” were the basis for the courts authority and today it’s Constitutional principles or is it both? I have no problem agreeing that natural law or Constitutional principals are foundation elements of US government. The problem is the expropriation of exclusive guardianship by an unelected judiciary such that they have absolute authority over any law and the ability to create new law on a rationalization concocted from these elastic principles. I argue for a judiciary that recognizes and respects the role of each government branch such that an Appeals court judge doesn’t thumb his nose at Congress thereby condemning an incompetent person to death by starvation based on hearsay.
You ask for a consistent definition of judicial activism. Yet the nature of the phenomena makes that a futile exercise. The judiciary is anything but consistent. Take free speech as an example, want to look at porn non-stop, no problem. Want to run a TV ad supporting a Senatorial candidate, the government will supress it with judicial blessing. Gosh I feel much better about banning political speech knowing that I can look at smut to my heart’s content. This is consistent application of natural rights or Constitutional principles?
RWing Nut wrote:
I did not opine that natural rights was the “basis for the court’s authority”. The basis for the court’s authority is the Constitution, of course. But the founding premise of this nation is that natural rights precede government, including courts, and that governments, including courts, are instituted among men to secure the natural rights we all have. So when interpreting the Constitution, the courts should of course consider their primary job to be the preservation and protection of natural rights, since that is the reason why we create governments in the first place and that is the overarching purpose of the Constitution.
In other words, you argue for a judiciary who doesn’t do things you don’t think they should do. But the fact is that the courts, both state and federal, followed the law at every level. I’ve explained what the law ways on both levels in great detail, without refutation, yet you continue to just post the same conclusionary rhetoric as though it had not already been debunked. At no point in the Schiavo case did any court, state or federal, “create new law”. Every court applied existing law and they did so quite diligently.
The state courts followed the law at every turn. Florida state law requires the court, in cases where the wishes of a non-responsive patient are in dispute, to take guardianship of the patient and hold hearings and make a ruling on the question of whether the patient had verbally made her wishes known prior to being non-responsive. The court did so, taking depositions, hearing testimony and cross-examination of 5 relevant witnesses and determined that there was clear and convincing evidence of Terri’s prior stated wishes. That decision was appealed twice and upheld twice, with the higher courts agreeing that the evidence was sufficently clear and convincing to warrant upholding that ruling. The Guardian Ad Litem who was appointed when the Florida legislature tried to intervene in the case also agreed with that ruling. At no time during that process was any new law created, except by the state legislature in an ex post facto fashion, which is unconstitutional in the state of Florida. So the only ones who can be accused of making new law that flouts the Constitution was the legislature, not the courts.
At the Federal level, the new law that Congress passed in the dead of night to give the Federal courts jurisdiction in the case was also followed to the letter. Congress may not have liked the outcome, but the courts diligently applied the law in determining whether to issue a stay pending appeal. Nothing in the new law required them to grant a stay pending appeal, so they accurately applied existing case law. This is precisely what judges are supposed to do. Anything other than that would be “activist” – stepping outside of the law to get to a preferred outcome in the case. And on top of that, the law that Congress passed was itself clearly unconstitutional. So here again, the only ones who can reasonably be accused of distorting the Constitution are those in Congress, not the courts.
All of this has been said before. All of this has gone unrefuted by you. But you ignore all of the relevant legal facts as though they were irrelevant to your conclusion. But if your claim is that judges were not following the law, then it seems to me that the legal facts are quite important. So why not just drop the legal arguments, which you seem quite unprepared to defend, and just admit that your problem with it is that you disagree with the outcome regardless of whether it was legally correct or not?
The restrictions on running TV ads came from Congress, not the court. And President Bush, you may recall, went to court during the campaign to try and convince a judge to ban 527 ads completely, which his spokesperson said he thought he had already banned when he signed the bill. I happen to agree that the court gave far too much latitude to the Congress in upholding portions of the Bipartisan Campaign Finance Reform Act. But remember, a Republican-controlled Congress and a Republican President pushed through a bill that you and I both agree violates the first amendment. So why aren’t you railing about “legislative activism” in passing bills that are unconstitutional? Your definition of “judicial activism” seems to be so broad that you even include in it cases where those damned “unelected judges” were not activist enough to strike down “the will of the people” as expressed through their elected representatives. And this is exactly why I said before and say again that the phrase “judicial activism” means nothing more than “judges doing things I don’t like”. There is no coherent definition of it being offered.
Raoul Berger wrote a whole book about the 14th amendment. It seems clear, given his documentation, that the Supreme Courts have been lying for a long time. You may call it “legal fiction” but lie fits the case exactly.
Is it time to revist Marbury? I think we need an independent branch but not one that is independent of the text of the Constitution nor of the views of the Declaration of Independence, namely things like rights discoverable by natural reason, natural law, references to the Creator, etc. etc. Life, for instance being the first thing mentioned. You know, there are other theories of society than that of Hobbes and better ones.
I find it amusing to hear pro-life Christians argue against penumbral reasoning when the Bible never, ever specifically mentions abortion but they can derive it from other statements.
Well said, Jim.
For a good example of judicial activism, I think that citing foreign courts to reach decisions in the United States is completely inappropriate. There is no precedent for it, and the wide range of foreign court decisions to choose from makes this essentially legislating from the bench. I would agree with Ed’s post entirely, however.
Sorry for my late response. I’ve been incredibly busy for the last 24 hours.
Ed wrote:
Can you give an example of a ruling with an “extra-Constitutional rationale”? Even Roe v. Wade, which you listed as an example, has a clear rationale that is grounded in the text of the Constitution (via penumbral reasoning)
Again I am having problems consistently and clearly putting my opinions into words. I should have said “extra-Constitutional or penumbral rationales.” In other words, anything that is not drawn directly from the text of the Constitution. So, Roe v. Wade does qualify.
Can you tell me which rulings you think reduced the freedom of speech or freedom of religion of students?
One that comes to mind is the ruling about the high school football games in Texas, where the overwhelming majority of students had voted in favor of having a student-led prayer at the beginning of football games. I expect you will disagree with me, but when a short prayer supported by nearly the whole student body at a voluntary extracurricular event is overruled for the sake of a small minority that objects, I think the free speech and free exercise rights of the majority have been abridged.
An even more intrusive case, however, is the injunction issued a number of years ago by Judge Ira DeMent, which restricted a broad array of religious expression by students while at school. (summary on this (obviously biased) page, and a more detailed, more thoughtful commentary here–scroll down halfway to read the details of DeMent’s order) DeMent is the best (i.e. worst) example of an activist judge that I’m aware of. See analysis of another of his decisions here.
Scalia, for example, is far more consistent in the type of reasoning he uses and how he applies it than, say, O’Connor, who tends to change her basis of reasoning depending on the preferred outcome
And that, I would say, is the essence of judicial activism. The activist judge decides what outcome he/she would like to see, then sets about looking for rationales to support it, be they the actual text of the Constitution or “penumbras” of various clauses. The Constitution (as well as case law) becomes not a standard to follow, but a tool to reach a predetermined end.
Sorry, I only have time for a brief response today.
Ed Brayton wrote in part “you ignore all of the relevant legal facts as though they were irrelevant to your conclusion.”
Because the legalities are irrelevant to the action taken or lack of it the Schiavo case. A legal degree is not required to understand the true dynamic at work when 11th circuit court of appeals judge Birch says the newly enacted law “invades the province of the judiciary and violates the separation of powers principle” nor is there anything to be gained by dissecting the legal minutae. All the legalese is simply an attempt to create a patina of respectability on an imperious judiciary. Start with the desired result of any ruling class “show them whose boss” then construct the “legal” argument to support the preordained conclusion.
Eric Seymour wrote:
Okay, but you previously admitted that penumbral reasoning is necessary. It just doesn’t seem like you have any well thought out conception of what you oppose, only that you don’t like the outcome and therefore it must be wrong. Which is not unique to you. I don’t think anyone really has such a coherent conception, even among the leading judicial conservatives.
I don’t know anything about the Texas case, but I’ll look it up. But remember that the only court that really can be “activist” is the Supreme Court. Appeals courts and especially district courts are bound by precedent from higher courts, so while they may very well often decide cases wrongly, they are then overturned by the higher court. And the series of precedents on church and state and school issues are, I think, quite reasonable and constitutionally defensible, even if confused as to the process by which they get there.
But Dement is a district judge. And in the case you refer to, Chandler v James, he gave a series of explicit orders based upon the various binding precedents on what the school may and may not do. About 80% of what he said was correct and valid and went unchallenged by the school district. The district challenged only the portions dealing with ostensibly voluntary religious speech, and the appeals court agreed with them and invalidated that portion of his order. This hardly seems an example of a judge that is out of control. He got it mostly right, wrong in part, and was promptly corrected by a higher court. The system isn’t perfect and judges do screw up. But what more do you want?
My argument, though, is that everyone does that to some extent, even those, like Scalia, who claim not to. I can give you many examples of Scalia engaging in the very same sort of objective-driven reasoning in order to reach the decision he wants.
For example, he has argued far and wide against the courts looking at the legislative intent or legislative history of a bill to help determine constitutionality. Yet in his dissenting opinion in Edwards v Aguillard (which struck down “creation science” in public schools), he makes the argument that they should look at the intent stated by the Louisiana legislature because they considered the question of whether the law was unconstitutional and decided that it was not. This is just one example, and not even a particularly compelling one, of Scalia’s inconsistency.
I think he’s more consistent than O’Connor, but everyone is more consistent than O’Connor, who is just all over the board in terms of her legal reasoning. But he still does the very thing he accuses liberals of doing when it suits his ends. If this makes sense, O’Connor is more consistent in her inconsistency, whereas Scalia is sometimes consistent and sometimes not. But O’Connor doesn’t pretend to be consistent, while Scalia not only pretends to be but regularly hammers those he thinks are not.
RWing Nut wrote:
Oi vey, this is just sheer absurdity. Was Judge Birch wrong or was he not? I say he was right, and I am fully prepared to back up that statement. You say he’s wrong, but you have no idea why and you don’t really care because, after all, the legal facts just don’t matter. Well sorry, but that’s stupid. If you’re going to make the argument that a judge didn’t follow the law, then the legal facts not only matter, they’re all that matter. The same is true of Judge Greer. You say he was engaged in “judicial activism”, yet you can’t point to a single ruling he made that did not follow the law to the letter. And that inability then leads you to declare that the law doesn’t matter. But your very argument is that they didn’t follow the law. You’ve built a perfect force field of circular absurdity around a position that has nothing to back it up.
Okay, but you previously admitted that penumbral reasoning is necessary. It just doesn’t seem like you have any well thought out conception of what you oppose
No, as I’ve said several times and formulated most strongly in my last comment, what I oppose is judges deciding outcomes based on their personal philosophies and then finding “excuses” to rule that way. Of course, it’s practically impossible to prove this is what happened in a case by reading the decision. But I think when someone is relying on penumbras it should send up a red flag. Sometimes penumbras are valid, sometimes they’re not.
But remember that the only court that really can be “activist” is the Supreme Court.
That sounds a lot like the well-worn canard that only the majority race in a society can be racist. And by your formulation, SCOTUS can be “activist” simply by not considering a case taken at the district or appellate level. So the judge(s) who wrote the decision is (are) not activist(s), but the court which decided not to act upon the case is? That’s a bizarre definition of “activist.”
One thing I liked about Raoul Berger was that he consistently applied his theory, even if I disagreed with it. He was certainly better than conservatives who decry “activism” like Lawrence and Romer but then go along and support decisions, for political reasons, that are every bit as inconsistent with that theory that they proffer.
For instance, Berger openly admitted that Brown and Loving were incorrectly decided.
And were he alive, he certainly would have thought the Dale decision to be wrongly decided as well.
And of course the attacks on the judiciary have nothing to do with developing God’s Own Party.
http://www.nytimes.com/2005/04/15/politics/15judges.html?ex=1114142400
Never.
Eric Seymour wrote:
So again, when are they valid and when are they not? This just gets us back to the position I’ve stated many times, that this is just a catchphrase that means “judges doing things I don’t like”. Are they valid when you agree with the outcome and invalid when you don’t? Let’s take Roe v Wade as an example. You believe this case was classic “judicial activism”, and you may be right, but if you are it’s not on the basis of poor penumbral reasoning. I think a good argument can be made that the application of the right to privacy was flawed, but the decision was not wrong because it recognized the same right to privacy, reached through penumbral reasoning, in Griswold.
I’m not really defining “activist” here (nor are you and nor is anyone else who uses the term, and that is precisely the problem in my view). My point was simply that while lower courts are bound to applying precedent set by higher courts. So in the instance of the Chandler case that you mentioned earlier, for example, you had a lower court that was almost entirely correct but wrong in part of their decision and the appeals court struck down the parts that were wrong. But they did so on the basis of solid legal precedents set by the Supreme Court, and it is precisely those well reasoned precedents that prevent judges from going outside settled law. If you’re going to make the case for widespread “activism” distorting the meaning of the Constitution, the case has to be made on the basis of Supreme Court precedents, not lower court judges doing dumb things that are later reigned in.
I return to the main problem in this discussion, which is the lack of any coherent definition of “judicial activism”. When I hear conservatives like RWing Nut accusing Judge Greer of “judicial activism” for following Florida law to the letter, I know that “judicial activism” has no objective meaning whatsoever.
Where would one find Berger’s Theory (s)? I was under the impression that he was just a liberal who dealt with facts honestly. I suppose that might amount to a theory in this day and age. I do think that anyone who has not read his book on the 14th Amendment (easily obtained and cheaply too at Liberty Fund)is ignorant and dangerously so.
This just gets us back to the position I’ve stated many times, that this is just a catchphrase that means “judges doing things I don’t like”… When I hear conservatives like RWing Nut accusing Judge Greer of “judicial activism” for following Florida law to the letter, I know that “judicial activism” has no objective meaning whatsoever.
Frankly, if I’ve demonstrated anything in my arguments, I think it is that judicial activism means something far more specific, even if hard to prove, than “judges doing things I don’t like.” You don’t have to agree with me, but I would appreciate it if you don’t use the worst examples of people throwing terms around (no offense intended to RWing Nut or anyone else) in order to smear sincere, well-thought-out criticisms.
You are correct that the delegates to the Constitutional Convention, as well as the writers of The Federalist, expected the Constitution to be a general-purpose document with implicit powers.
What you are overlooking, however, is that at the time there was a broad and deep consensus about the unwritten constitution of the United States. As Jefferson wrote of his authorship of the Declaration, it was not intended to express novel ideas or theories never before heard; it merely expressed the common understanding throughout the colonies, based on the reference documents of the age, such as Aristotle, Sydney, and Locke. Moreover, inhabitants of British North America and the United States were overwhelmingly Protestant Christians.
It was clearly understood by the founding generation that the Constitution embodied natural law and its Aristotelian definition of the summum bonum. The Declaration’s ‘Laws of Nature and of Nature’s God’ is a direct reference.
What this boils down to is that judicial activism is the process of deliberately scrapping the founding ethos, the unwritten constitution, and substituting statist, socialistic secular materialism as the new ruling ethos, and doing so by fiat.