War on the Judiciary, Take 4
The rhetoric coming from some portions of the right concerning the judiciary continues to grow ever more vitriolic and unbalanced. Ruth Marcus has an interesting piece in the Washington Post today that includes some comments that are constitutionally dubious at best and downright delusional at worst:
At the same time, there is reason to fear that something has changed in the national climate when the chief of staff to a U.S. senator — even if that senator is Tom Coburn of Oklahoma — tells a public gathering, “I’m in favor of mass impeachment if that’s what it takes.” An “easier way,” the aide, Michael Schwartz, said at last week’s conference, would be to oust activist judges for bad behavior. “Then the judge’s term has simply come to an end. The president gives them a call and says, ‘Clean out your desk, the Capitol Police will be in to help you find your way home.’ ”Schwartz went on to provide a helpful, if not exhaustive list, of which judges he had in mind, including the majority of the Supreme Court: “It is tenure for life as long as you behave well . . . as I know that Justice Kennedy and Justice Souter and Justice Breyer and Justice Ginsburg and the rest of that crowd have not done.”
Schwartz may be a particularly extreme example, but he’s not the only one. “There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary,” the spokesman for the House Judiciary Committee chairman, F. James Sensenbrenner (R-Wis.), told the New York Times. Rep. Steve King (R-Iowa) has threatened to cut off court funding. “When their budget starts to dry up, we’ll get their attention,” he said. “If we’re going to preserve our Constitution, we must get them in line.”
The article didn’t mention Rep. King’s most insane comment. In the NPR interview quoted above, King not only suggested that Congress cut the budgets of the courts (and never mind that this would end up depriving American citizens of their right to have their day in court on any number of mattes) but even said, “We could prohibit the Justice Department from enforcing the orders of the court.” And I would suggest that the spokesman for Rep. Sensenbrenner read the Federalist Papers, particularly #78. He will find not only was the Constitution designed to create an independent judiciary, it was defended with precisely the same words that he claims are a “misconception” and was considered the primary defense of Constitutional limitations:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
What is particularly crazy about the whole thing is that this rhetoric is being aimed at what is a far more conservative court than we have had in the last half century. The bulk of the Federal judges in place right now were appointed to the bench by Republican presidents and the Rehnquist court is considerably more conservative than either the Burger court or the Warren court. In all the inflated rhetoric about judges “ignoring the clear intent of Congress” in the Schiavo case, the only judge it could be explicitly aimed at is Judge Stanley Birch, who is the epitome of the kind of non-activist, strictly textualist judge that these same people have for years pretended to want to put on the bench.
The Marcus article also points out that the risk of all of this extremist nonsense turning from rhetoric into action may be lower after the Terri Schiavo case. After Tom Delay and Jon Cornyn ramped up the rhetoric in the last week, Dick Cheney and Bill Frist were quick to jump on them for those comments. And with public opinion polls showing that even most Republicans thought that the courts were right and that Congress should have stayed out of it, the moderates in the Senate are going to be even less likely than before to support the “nuclear option” on filibusters out of fear of being associated with the extremists. This is a good thing, of course. Meanwhile, Barney Frank hits the nail right on the head concerning Congressional intervention in the Schiavo case in the Boston Globe:
[T]he distinction between the judicial and legislative functions must be maintained. On March 27, Congress did not legislate. We constituted ourselves as an ad hoc super court, cancelled the lengthy, careful judicial deliberations of the entire court system of Florida, and sent the case to a federal District Court with very specific instructions about how to proceed in deciding it. Members of Congress brought to that decision our ideologies, our concern for reelection, our interests in advancing our parties’ political positions, and our need to maintain good relationships with our political leaderships and colleagues — elements that should have had no place in this decision. Future legislative efforts must remember that if we do not wish decisions to be made on a political basis, we should not ask 536 politicians to make them.
Hear, hear.
Update:Oi vey, I hadn’t even seen some of the crazier people speaking at this recent conference on the “judicial war on faith.” The Washington Post reports on Friday:
Conservative leaders meeting in Washington yesterday for a discussion of “Remedies to Judicial Tyranny” decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.Phyllis Schlafly, doyenne of American conservatism, said Kennedy’s opinion forbidding capital punishment for juveniles “is a good ground of impeachment.” To cheers and applause from those gathered at a downtown Marriott for a conference on “Confronting the Judicial War on Faith,” Schlafly said that Kennedy had not met the “good behavior” requirement for office and that “Congress ought to talk about impeachment.”
Next, Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy “should be the poster boy for impeachment” for citing international norms in his opinions. “If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.”
Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, “upholds Marxist, Leninist, satanic principles drawn from foreign law.”
Ominously, Vieira continued by saying his “bottom line” for dealing with the Supreme Court comes from Joseph Stalin. “He had a slogan, and it worked very well for him, whenever he ran into difficulty: ‘no man, no problem,’” Vieira said.
The full Stalin quote, for those who don’t recognize it, is “Death solves all problems: no man, no problem.”
Holy crap, have these people lost their minds completely?
27 Responses to “War on the Judiciary, Take 4”
Independent judges does not mean that they are independent of the text and plain meaning of the Constitution or of other founding documents. The writings of the anti-federalists deserve some attention too, especially where they agree with the federalists on some point.
The idea that giving people jobs for life frees them to act in the public interest is just nonsense. If history shows anything it shows that unaccountable government is bad government.
The principle applies to all leadership: politicans, judges, educators, priest, police. And to the private sector where, too often, CEOs and directors defy the stockholders, make disasterous business decisions, and avoid any consequences.
The Constitution was not intended to be perfect or there would be no amendment process. Federal judges should be appointed to a non-renewable 20 year term with a pension. They can never again hold public office.
Anonymous wrote:
I don’t even know what the point of this is. Of course it doesn’t mean they are “independent of the text and plain meaning of the Constitution,” assuming that a “plain meaning” is easy to discern. An independent judiciary means independent of the peculiar pressures of electoral politics. They were appointed for life rather than elected by majority vote to secure that independence, and to impeach them because they use a different judicial theory or constitutional intepretation than the politicians want them to is a clear violation of the separation of powers. The plain meaning of the constitution forbid Congress from imposing a rule of decision on a federal court, but that didn’t stop them from doing so with “Terri’s law”. As Hamilton noted, it is for such situations, where the legislature oversteps its constitutional boundaries, that the court was given independence from political approval. The system is supposed to work this way, there’s supposed to be tension between those branches of government.
“I’m a radical! I’m a real extremist. I don’t want to impeach judges. I want to impale them!”
Sen. Tom Coburn’s chief of staff, at that conference.
Tension, yes, but it does seem to me that the courts have become more powerful than the other two branches of government. It is entirely commonplace now for the courts to overrule the legislature based on some bit of Constitutional interpretation or judicial precedent that requires a law degree to understand. What power does the President or the legislature have that can compare to this? Or more accurately, when was the last time the other two branches effectively used an equivalent power?
It’s possible my perception of the situation is inaccurate, and even if it’s not I don’t know what the proper remedy would be, but that’s my opinion nonetheless.
Or more accurately, when was the last time the other two branches effectively used an equivalent power?
Guantanamo Bay
Eric,
The power they have is to both pay attention when writing legislation and to quit trying to play BS games when writing some of it. They write bills that can easily be interpreted to be a broad ban on abortion while claiming that it’s only to stop that evil procedure that every good right thinking Christian (Which in their mind means only those Christians that agree with them.) knows is really common, partial birth abortion. They rush things through without paying any real attention to them. They pass bills to appeal to core constituencies irregardless of whether it’s a good idea and their followers just go along and believe whatever their right wing news source of choice claims about it. Facts will never get in the way.
I’ve not seen judges go to war or build a highway. So, each branch has various strengths and weaknesses. But, the Schiavo bill which precipitated a lot of this loony talk is a great example of how the right-wing legislators are playing their base for chumps. Santorum has a law degree. He knows what was in that bill. And what was in the bill bears only a nodding relationship to what he claims was in the bill. To say that the judge defied the wishes of Congress is to misrepresent the text of the bill and even the legislative discussion while the bill moved through Congress. Specifically, the question was raised whether the bill *required* the judge to order the feeding tube to be inserted. I think it was Frist who responded that he presumed the judge would order that but conceded that there was no such requirement. Then you have Santorum take to the radio and say that the judge DEFIED THE WILL OF THE CONGRESS. Such lies are unconscionable.
Oh, and maybe if we’d teach our kids civics in school during the time allotted for saying the pledge and moments of silence for prayer, our citizens would understand the Constitution without the need for a law degree.
The other two branchs reduced the abiity of the whole Federal bench from issuing injunctive relief during labor disputes so as to stop the otherwise criminal acts of union thugs. I think that perversion is still in place.
Abuse of the text? Where to begin? How about the recent decision to exempt killers of age 18 or less from being tried, convicted, and executed as adults? How old did you have to be to risk death by the British in 1776? How old were drummer boys? When it comes to abuse of the text nearly anyone can find Roe v Wade and the more legal education you have the more cases of abuse you can document.
Your upset because we can’t kill kids? “Culture of Life” indeed. And, I don’t believe you when you say we can’t try and convict teen murderers as adults. Got a cite?
I hate it when I do that — that “your” above should be “you’re” – of course.
Anonymous wrote:
I think your characterization of “abuse of the text” is oversimplified and dubious. What you have found are decisions that you disagree with; I can find many such decisions myself. But the fact that the courts are sometimes wrong has little to do with this issue. Of course the courts are sometimes wrong; they are, after all, human beings and human beings have a habit of being wrong from time to time, you and me included. Sometimes when they are wrong they manage to correct it later, as when they overturned Bowers with the Lawrence decision. And sometimes they don’t, as in the Slaughterhouse decisions. But in neither case is it justifed for elected officials to threaten to punish or impeach judges who make decisions they disagree with. And to threaten to have the executive branch refuse to enforce court rulings, as Rep. King did, is sheer lunacy that threatens our entire Constitutional system.
I’m not going to engage in partisan bickering here. Suffice it to say I’m hardly surprised that liberals think it’s just fine and dandy when the courts overrule initiatives passed by the GOP majority in Congress.
I will, however respond to a couple points:
The power they have is to both pay attention when writing legislation and to quit trying to play BS games when writing some of it.
Um, that’s not an example of checks and balances. You’re just saying the legislature must play by the rules the judiciary gives it, which is exactly the sort of unbalanced situation I think we’re in today. (Laws are supposed to be in concert with the Constitution, but the modern judiciary has stretched that document to new and unusual definitions. But then, I’m a strict constructionist, what do I know?)
Guantanamo Bay
Even less of an example. The executive branch has used powers given to it by the Constitution, and the judicial branch has not overruled it. (Not yet anyway, or not the entire operation.)
It’s been awhile since high school civics, but as far as I’m aware the checks on the judicial branch are appointment, impeachment, and amending the constitution. The latter two are (or have become) very rare. Consequently, although there may have been no intentional power grab, the judiciary branch has gradually arisen to a position of higher prestige and power than the other two branches.
Eric Seymour wrote:
I don’t think this is an accurate description of the situation. It’s not that the judiciary has “higher power” than either the legislative or executive branches, it’s that they have a set of powers unique to them and the other two branches don’t like it. But those other branches have powers unique to them as well. It is the judicial branch that is given the unique power to review laws for constitutionality. But the judicial power does not have any power to order troop movements, or the power to raise or lower taxes. Those are powers reserved for the executive and legislative branches, respectively. I don’t think the fact that the executive branch has power to command troops movements and the courts do not means the executive has “higher power” than the judicial branch as a general statement, it means they have the power in that particular area, as the Constitution intended and requires. These powers were intended to be separate and they are.
It is the judicial branch that is given the unique power to review laws for constitutionality.
Ay, there’s the rub. As you know, striking down laws as unconstitutional is not specified as a judicial power in the Constitution, and that power was not established by the court until Marbury v. Madison in 1803. No one would reasonably argue that judicial review is invalid, but in my view judges’ propensity to find all sorts of hidden meaning in the Constitution has expanded that power well beyond being a mere check on the other branches of government to the point where the courts often function as an unelected “superlegislature.”
Add in the fact that Congress has become loathe to exercise its power of impeachment (no, I don’t think a judge should be impeached just for making a politically unpopular decision but if he/she is consistently legislating from the bench I think it’s just as valid for Congress to “review” his/her status as a judge, just as the court strikes down laws when Congress goes too far), and as I said, I believe the judicial branch has grown out of balance.
Eric Seymour wrote:
The power of judicial review was not “established by the court”, it was established by the founders themselves. Both the Federalists and Anti-Federalists agreed that the powers granted to the Supreme Court in the Constitution – “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” – included the power to declare laws unconstitutional. The anti-federalists opposed this power, of course, but they opposed it precisely because the Constitution intended for the courts to have and exercise that power. Again I refer everyone to Federalist 78, which lays out both an explanation and a defense of the provisions of Article III. In it, Hamilton says:
Those who wrote and advocated the Constitution explained that Article III gave the courts the power to strike down legislative acts on the basis of their Constitutionality, and defended that principle; those who opposed that principle readily acknowledged that Article III granted that power to the court, which is why they opposed ratifying it. But there can be no doubt that judicial review was part of the courts’ authority from the very beginning. The fact that they didn’t use it until Marbury v. Madison is irrelevant to that question.
One can easily find cases in which the courts have ruled incorrectly, but the notion of “legislating from the bench” is, I think, an empty catchphrase. Whenever anyone disagrees with a court’s ruling, they would say that they are “legislating from the bench”. Invariably, those who use this phrase do not have a consistent and objective standard by which to determine when a court is reasonably applying constitutional authority and precedent and when it is “legislating from the bench”, which makes it little more than a catch-all phrase, like “judicial activism”, that really just means “judges doing things I disagree with.”
Whenever anyone disagrees with a court’s ruling, they would say that they are “legislating from the bench”.
That is a liberal canard. There are plenty of cases where I disagree with the way a court interpreted or applied a law which I would not consider judicial legislation. 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.
Invariably, those who use this phrase do not have a consistent and objective standard
The standard is the plain meaning of the Constitution. Of course, it’s not entirely objective. It’s impossible to draw a non-arbitrary line where interpreting the Constitution ends and distorting it begins. But does that imply that the Constitution means whatever a judge says it means? I think not.
Ed Brayton wrote in part “One can easily find cases in which the courts have ruled incorrectly, but the notion of “legislating from the bench” is, I think, an empty catchphrase.”
When the courts rule incorrectly, what is the remedy? There is none. Legislatures and executives, even the people by referendum can pass whatever they wish into law but with a stroke of a pen the judiciary wipes it away without any effective redress. But, wait there is more, the judiciary can choose or fabricate the basis for its decisions, such as “de facto” discrimination. Or, arbitrarily decide that the state legislation is not spending enough on education as the Federal court did with the state of Arizona.
“those who use this phrase do not have a consistent and objective standard by which to determine when a court is reasonably applying constitutional authority and precedent ”
The same could be said about the conduct of legislative and executive branches. But then again the role of these branches, unlike the judiciary, is to make new law. So when the Congress passes and the President signs legislation banning partial birth abortion somehow the court finds that the law is unConstitutional because it doesn’t have the proper exceptions in it. From what legal authority does that spring? None. The court simply decided that based on the RvW precedent which granted a right never legislated, that it didn’t like the law.
Eric Seymour wrote:
Okay, so let’s get a bit more specific if we could. Can you give me, say, 3 rulings that you think were decided wrongly but were not “judicial activism” or “legislating from the bench” and 3 cases that were decided wrongly but were those things? That way we could try and nail down some sort of coherent distinction between when a ruling is merely wrong and when it represents “judicial activism”. I’ll take the position right up front that I don’t think this is possible to do.
As far as penumbral reasoning goes, I think much hay is made of opposing the use of such reasoning, but this opposition, like the opposition to “judicial activism”, is inconsistent and incoherent. I doubt you would object to penumbral reasoning in all cases, only in those cases in which you disagreed with the outcome. Because the truth is that the courts have often used penumbral reasoning in rulings that conservatives support as well as in rulings that they criticize. Glenn Reynolds (yes, the Instapundit himself) wrote an excellent article for the Penn Law Review in 1992 on this subject. He has made it available online here. He points out numerous instances of penumbral reasoning that are accepted without criticism even by the strictest constructionist or textualist. Reynolds writes:
Justice Douglas considered a large part of that history in the Griswold decision, pointing to numerous decisions that based specific rights on general principles found in the Constitution, including the right to free association, the right to send one’s children to a private school, the right to read a book, the right to study a foreign language, and so forth. And Reynolds also points to the doctrine of legal standing, something not defined in the Constitution, and to the notion of sovereign immunity as other examples of penumbral reasoning that are not only constitutionally acceptable, but constitutionally necessary.
Now it seems to me that one could very reasonably argue with the outcome of a particular instance of penumbral reasoning, but it is not reasonable to argue that any decision based on penumbral reasoning is, merely by virtue of the process itself, an example of “judicial activism” or “extraconstitutional opinion”. For instance, I think one can make a very good argument that the right to privacy was misapplied in Roe v. Wade, but I don’t think one can make a good argument that there is no right to privacy because that right was derived from penumbral reasoning itself. Because if one were to consistently reject penumbral reasoning, one would be voiding a wide range of rulings that they would no doubt support. And one would also be essentially reading the 9th amendment out of the bill of rights. I agree with Reynolds entirely when he writes:
Penumbral reasoning is not only acceptable, it is necessary given the often general language of the Constitution (by necessity, of course) and the clear meaning of the 9th amendment that there exist rights which must be protected that are not specifically named. To throw out penumbral reasoning because you disagree with the application of it in certain cases is to throw the baby out with the bathwater.
RWing Nut wrote:
You’re right, there is no short term remedy when the courts rule incorrectly on constitutional interpretation. In the longer term, one can amend the Constitution or appoint justices who are predisposed against such rulings. But this inability is inevitable. If you gave some other body power to overrule the courts when they get it wrong, then what is the remedy when THAT group gets it wrong? The same thing is true of those powers delegated to the President and to Congress. The President, as commander in chief, has the power to send troops abroad. If they do so unjustifiably, and I think we would all agree they have at some point in the past, what is the remedy? You can impeach them or vote them out of office, but you can’t undo the damage. You can’t turn back the clock and bring back the dead. You can build checks and balances into the system, but you cannot avoid any and all possibility that someone is going to get it wrong. Ultimately, someone has to have authority, and the ultimate authority still resides with the people through the amendment process if they are sufficently opposed to what the courts have done.
But I’ll say the same thing to you that I said to Eric above. The courts have recognized all sorts of rights that you take for granted every day that are not mentioned in the Constitution at all. You have the right to free association, the right to educate your child at home or send him to a private school, and the right to read books, all mandated by Supreme Court rulings striking down legislation that limited those rights. And none of those rights are mentioned in the Constitution. But you don’t make the argument that the courts were “legislating from the bench” and “discovering rights that were never legislated”. Why? Because you agree with the outcomes in those cases.
The argument I have made consistently remains absolutely true – there is no way to offer an objective argument against “judicial activism” that does not also rule out all sorts of protections you take for granted. There simply is no coherent and consistent definitions of those terms, which is exactly why I continue to maintain that all they really mean is “judges ruling in ways I don’t like.”
Something of a non sequitur, I guess, but I don’t see conservative legislators refusing to exercise legislative power not specifically enumerated in Article I, Section 8 of the Constitution. Would that make them activist legislators that good conservatives ought to shun?
Doug wrote:
I don’t think this is really a non sequitur. I remember reading a law review article quite some time ago (probably in the late 80s) about the issue of abstraction of principles and constitutional interpretation. I believe it was by Kathleen Sullivan. The article noted that most conservatives will happily abstract the authorities listed in the Constitution while refusing to abstract any of the rights guaranteed in the bill of rights. For instance, where in the Constitution would one find an authority to regulate sexual behavior between consenting adults, or ban the use of contraception, and so forth? They take very broad principles like “promote the general welfare” and “interstate commerce” and abstract them to justify all sorts of intrusions into our private lives and affairs that would make the founding fathers rise up in another revolution. But when it comes to rights, how often do you hear the argument that the courts are “inventing” a right that is “not mentioned in the Constitution”? The problem is, as I have noted, that some level of abstraction is absolutely mandatory in our system. So when people criticize a ruling as being fraudulent merely because a right is not specifically mentioned, they either do not realize how many rights they take for granted would be eliminated by such a standard, or they don’t care. It just oversimplifies the issue to the point of absurdity, but it has made very useful rhetoric for quite a long time.
Doug,
Legislators are supposed to be activists, that is their role unlike the judiciary.
Ed Brayton wrote in part “If you gave some other body power to overrule the courts when they get it wrong, then what is the remedy when THAT group gets it wrong?” There is a group that has ultimate authority, it’s called the American electorate. They get to vote every few years on the people whose duties are to change the law, legislative and executive branches of government. The judiciary has extended itself into the arena of law making instead of law interpreting, you can dress it up with “penumbral reasoning” and so forth. But, it’s still an abuse by the judicial activists. The current arguement is not for structural change, it is for the courts to reassume their Constitutional role of interpreting the law as written, including the Constitution. And, to cease legislating by court order. I have mentioned earlier RvW and overturning the ban on partial birth abortions as examples of judicial activism. These are parts of a social agenda that the people never had a voice in implementing. (BTW I believe that abortion should be safe and legal.)
You attempt to make the argument that we wouldn’t have rights we take for granted if it wasn’t for the courts, this is an apt description for a dictator. The people have no rights except those granted or constructed by the courts. That’s not the US form of government. The people excercise their rights through their elected representatives, not sultans in black robes.
It stands to reason that people will criticise those decisions they disagree with to the exclusion of those they support. Rather like a court of appeals.
RWing Nut wrote:
Nonsense. Legislators are supposed to work within the boundaries of the Constitution just like other branches of government, and they often don’t. As James Madison put it, the constitution is a charter of power granted by liberty. The entire point of the Constitution was to place limits on what legislators can do and the courts are the primary means of preventing them from going over those boundaries (remember what Alexander Hamilton said, that all of the rights and privileges set out in that document would “amount to nothing” without an independent judiciary with the power to strike down laws that overstep the authority granted to them in that document). By what Constitutional authority does the legislature pass a law declaring it a criminal act for me to get together with my friends and play poker, or place a bet on a football game? By what Constitutional authority does the legislature pass a law telling me what I can do with another consenting adult in the privacy of my own home, or what kind of deal I can make with another free adult to provide a service? By what Constitutional authority does the legislature presume to tell people that they cannot burn a piece of cloth that is their own property? One could go on all day long with examples. Yet you’re willing to abstract every grant of authority found in the Constitution while screaming bloody murder any time a court limits how much the government can intrude on our lives.
And that remains true today. The people can pass a constitutional amendment if they choose to, that is the ultimate check on the courts.
So were the courts “legislating by court order” when they ruled that you have the right to send your kids to private school? That isn’t mentioned in the Constitution specifically. Were the courts engaging in “judicial activism” when they ruled that you have a right to travel from state to state? That right isn’t mentioned in the Constitution either. There are a thousand rights that aren’t mentioned in the Constitution that you take for granted, but the fact that they aren’t mentioned specifically does not mean they don’t exist.
The entire purpose of the 9th amendment was to make it clear that they could not possibly list all of the rights an individual has and that just because a right isn’t mentioned specifically, that doesn’t mean the government can do whatever it wants. The 9th amendment was put in there specifically because the biggest argument against the bill of rights was that by enumerating specific rights it would give government carte blanche to intrude on any rights not specifically mentioned. So the 9th amendment declares bluntly that this is not the case, yet you still take the position that any right that is not mentioned can be taken away anytime the legislature wants to because, after all, they’re “supposed to be activist.”
You have it exactly backwards. The founding premise of our system is that rights precede government, that governments are instituted among men to protect rights that we already have by virtue of being human. Your position is that people only have those rights that are specifically named in the Constitution, and anything outside of that is fair game for government regulation. But that is completely opposite the principle of natural rights. Your position is that rights are granted by power; our founding premise is that power is granted by a free people, and that power is limited by our pre-existing natural rights. The presumption is in favor of liberty, not in favor of government. The burden of proof is always upon the government to show that whatever authority it seeks to exercise is a legitimate authority that does not intrude upon our natural rights; it is not upon the individual to show that they have a right to do something, it is upon the government, always and at all times, to show that it has a compelling interest in restricting the actions of the individual. People have a right to control their own life; they do not have a right to control others.
I just love seeing the Federalist Papers quoted. It tells me that some deep thinking is being done about what the Constitution actually means. (Not something you get on, say, Crossfire.)
Ed, I simply don’t have time to look up six examples for you–especially when you quite clearly have your mind made up. 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.
I doubt you would object to penumbral reasoning in all cases, only in those cases in which you disagreed with the outcome.
You are wrong. 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.