Judicial activism isn’t a bad thing

[Chris]

I'd always reserved judicial activism as the courts creating laws when that power belongs to the legislative branch. Apparently others see it as the court doing it's job, interpreting the constitutionality of legislated law, think the court should, on this view defer to legislators.

Here's George Will on the subject, JUDICIAL ACTIVISM ISN’T A BAD THING (http://www.humanevents.com/2014/01/23/judicial-activism-isnt-a-bad-thing/)


Disabusing the Republican Party of a cherished dogma, thereby requiring it to forgo a favorite rhetorical trope, will not win Clark M. Neily III the gratitude of conservatives who relish denouncing “judicial activism.” However, he and his colleagues at the libertarian Institute for Justice believe the United States would be more just if judges were less deferential to legislatures.

In his book “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” Neily writes that the United States is not “a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede.” America’s defining value is not majority rule but individual liberty.

Many judges, however, in practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained....

...Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.

...Neily argues that to say that judicial invalidations of legislative acts should be rare is no more sensible than saying NFL referees should rarely penalize players for holding. Conservatism’s task, politically hazardous but constitutionally essential, is to urge courts to throw as many flags as there are infractions.

The piece has examples I've left out.

[The Xl]

Judges should ignore unconstitutional legislation, and juries should acquit anyone up for some bullshit charge.

[jillian]

Judges should ignore unconstitutional legislation, and juries should acquit anyone up for some bullshit charge.

if the constitutionality of a law is not before a particular judge, they have no jurisdiction to do that. but if you are affected by what you BELIEVE is an unconstitutional law, feel free to challenge it in the courts.

jurors are not the arbiter of constitutionality.

[The Xl]

if the constitutionality of a law is not before a particular judge, they have no jurisdiction to do that. but if you are affected by what you BELIEVE is an unconstitutional law, feel free to challenge it in the courts.

jurors are not the arbiter of constitutionality.

Sure we are, much more so than corrupt politicians passing clearly Unconstitutional legislation. We have every right to ignore stupid, evil laws, hell, we have a duty to do so.

Kid gets prosecuted for drug use? Fuck that shit, he should walk free. How dare this system prosecute non violent, victimless "crimes." How dare they waste taxpayer money doing so.

You can be a slave to the state if you wish, regardless of their lack of morality and disregard for the Constitution. I won't.

[jillian]

Sure we are, much more so than corrupt politicians passing clearly Unconstitutional legislation. We have every right to ignore stupid, evil laws, hell, we have a duty to do so.

no. we aren't. that isn't our legal system.

you can repeat til you turn blue that the courts are irrelevant.

but they aren't.

[The Xl]

no. we aren't. that isn't our legal system.

you can repeat til you turn blue that the courts are irrelevant.

but they aren't.

I don't know if you've realized, but we're supposed to be governed by the law of the land, the Constitution, and that has been flagrantly ignored and pissed on.

If they won't uphold it, it's our duty.

[Chris]

I don't know if you've realized, but we're supposed to be governed by the law of the land, the Constitution, and that has been flagrantly ignored and pissed on.

If they won't uphold it, it's our duty.


While I think the courts should be the first line of defense of our rights, it is the power of the states and the rights of the people, as jurors, if not otherwise, to do so.

(I considered adding this to the nullification thread but thought it different enough in topic to merit a separate thread.)

[The Xl]

While I think the courts should be the first line of defense of our rights, it is the power of the states and the rights of the people, as jurors, if not otherwise, to do so.

(I considered adding this to the nullification thread but thought it different enough in topic to merit a separate thread.)

If the states fail, too, then it's the peoples job. Same if the state passed something dumb and Unconstitutional.

The games need to stop.

[Chris]

If the states fail, too, then it's the peoples job. Same if the state passed something dumb and Unconstitutional.

The games need to stop.


Oh I agree. Down to the country of not the community and individual level.

[jillian]

If the states fail, too, then it's the peoples job. Same if the state passed something dumb and Unconstitutional.

The games need to stop.

based on whose ideology? yours or mine?

i vote mine.

see how that works?

[Chris]

based on whose ideology? yours or mine?

i vote mine.

see how that works?


No ideology. Natural rights. See Declaration and Constitution.

[The Xl]

based on whose ideology? yours or mine?

i vote mine.

see how that works?

Your ideology is at odds with the Constitution and freedom. That's the difference.

Pretty simple.

[jillian]

Your ideology is at odds with the Constitution and freedom. That's the difference.

Pretty simple.


your ideology violates our actual law and caselaw.

i win.

[The Xl]

your ideology violates our actual law and caselaw.

i win.

Your ideology violates the Constitution, the law of the land, something you do not seem to be acquainted with.

I win.

[MrJimmyDale]

The problem is legislation seems to coming from the top going down.....

THE SCOTUS has seized all power and made themselves the final determiner of law, thus enabling congress.

The states should have the final say and dictate power upwards instead of receiving commands from the federals............

[Chris]

Your ideology violates the Constitution, the law of the land, something you do not seem to be acquainted with.

I win.



Thus we're back to nullification of laws that violate the Constitution.

In reality, we all lose.

[The Xl]

Thus we're back to nullification of laws that violate the Constitution.

In reality, we all lose.

Pretty much, yeah.

[Chris]

The problem is legislation seems to coming from the top going down.....

THE SCOTUS has seized all power and made themselves the final determiner of law, thus enabling congress.

The states should have the final say and dictate power upwards instead of receiving commands from the federals............



Legislation federal down is fine provided the Constitution actually grants the powers being legislated. The Constitution is a sort of tacit agreement on that much. But beyond that the federales are usurping the power of the states and liberties of the people.

[roadmaster]

I don't know if you've realized, but we're supposed to be governed by the law of the land, the Constitution, and that has been flagrantly ignored and pissed on.

If they won't uphold it, it's our duty. Exactly!

[Chris]

Same topic...

http://www.youtube.com/watch?v=cmCLBNEsIJQ#t=80

[Chris]

Randy Barnett reacts to George Will's column, “Judicial engagement” is not the same as “judicial activism” (http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/01/28/judicial-engagement-is-not-the-same-as-judicial-activism/)


In a recent column, George Will ruffled the feathers of some conservatives, like my friend Ed Whelan, when Will proclaimed, in the column’s title, that “Judicial activism isn’t a bad thing.” Will was commending a superb new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, by Clark Neily....

While the substance of Will’s column is great, the title is unfortunate. ”Judicial activism” was devised to be pejorative, but it has little content. Most invocations purport to be condemning the judicial invalidation of a law that was enacted by the supposedly more representative and accountable legislators in Congress or state legislatures. Judges, we have long been instructed by progressives such as Teddy Roosevelt and conservatives such as Robert Bork, should not thwart the “will of the people” as embodied in the acts of legislatures. Yet, because almost everyone thinks that unconstitutional laws ought to be invalidated, what “activism” really means is improperly invalidating a law that is not really unconstitutional. So the real sin is not invalidating a “popularly-enacted law” — nearly everyone is for doing this sometimes — but misinterpreting the Constitution.

Neily (and Will) object to a philosophy of “judicial restraint” that adopts a rule of construction found nowhere in the Constitution requiring judges to uphold a law if they can make up any possible legitimate reason why a legislature might have enacted it, regardless of whether the law was enacted for such a reason or not....

If “judicial activism” means improperly invalidating laws that are not unconstitutional, then Neily does not favor this, and neither do Will or I. For this reason, Neily and I call this approach “judicial engagement” not judicial activism. Similarly, if “judicial restraint” means only invalidating laws that are unconstitutional, then he and I both favor such restraint. What we reject is judges closing their eyes — or rewriting statutes such as the Affordable Care Act — so they may “defer” to legislative will and uphold legislation without assessing whether the legislation is properly within the power of Congress or state legislatures to enact. Instead of ”judicial conservatism,” which admonishes judges to put their thumbs on the scale to uphold laws, we favor “constitutional conservatism” in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation.

...Clark Neily and George Will are advocating that the judiciary, as a co-equal branch of the federal government, should be “restrained” to follow the Constitution, properly interpreted, whether that leads to upholding or invalidating legislation. Given its origin and common usage,”judicial activism” is an unfortunate choice of terms to describe this. ”Judicial engagement” is both a less pejorative and more accurate label for how a constitutionally conservative judge should act.

[Common]

Judicial activism is always ok when your side of the aisle has the upper hand. Id bet 10 yrs ago George Wills opinion was just the opposite.

The courts are used to over turn and change laws that one side of the political aisle want. If that was not the case why such a fight over appointees and supreme court nominees.

Anyone that believes our judicial system is on the up and up is just plain NUTS.

[Chris]

Judicial activism is always ok when your side of the aisle has the upper hand. Id bet 10 yrs ago George Wills opinion was just the opposite.

The courts are used to over turn and change laws that one side of the political aisle want. If that was not the case why such a fight over appointees and supreme court nominees.

Anyone that believes our judicial system is on the up and up is just plain NUTS.


That may be the case with you, common, but I don't think you understood what Will was saying.