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Tuesday, February 01, 2005

A Discussion

In response to my last post, I became involved in a discussion all day long about politics and judicial activism. I am posting those comments here:

(First Reply) canada rocks. and if gay folks wanna get
married, let 'em.

My point being: then it is up to the legislature to change the law. Let 5 people make the law -- without the input of the people -- you will lose your voice completely. You may agree with this one decision, fine. Eventually, however, they'll start making decisions you won't like. Where will you be then?

It is a principle repeated throughout history. Voltaire said, "I may disagree with what you say but I will defend to the death your right to say it." And, again, a German minister lamented after the Holocaust his reluctance to defend the Jews. . . for when the Nazi's came for the Baptists, there was no one left to stand beside him.

If you don't want your rights eroded in the future, you have to stand up for them now. Keep in mind: the history of the judiciary is, like society, a pendulum. It swings from liberal to conservative and back again. The only protection we have is self-imposed judicial restraint.

What happens when that is gone?

courts have made many decisions i do not like. this doesn't make me feel that their powers to interpret the law need to be curtailed. I also don't think that the mass. supreme court was acting too out of line with popular opinion, and even the opinios of their state legislature when making that decision. poll numbers showed that a majority of mass. citizens (i think 58% or so, according to a CNN poll) were okay with gay marriage, and only 22% thouth it would be bad for the state. mass. had for years supported such measures as civil unions.

anyway, judicial activism brought us brown v. board of ed. i'm sure the south would have kept things status quo for years after that decision, had it not been made.

i think the way we have set up our three-branch government is a thing of beauty. the judicial branch has a lovely chaotic element to it--we have to trust in human beings appointed by people we voted for. you're right about the "pendulum" effect of the judiciary--things seem to balance out over the course of several years.

Brown v. Board was not a result of judicial activism. If the Warren Court had subscribed to judicial activist policies, a decision like Brown would have been handed down long before 1954. They WANTED to do it before 1954. However, it took the NAACP and Thurgood Marshall until then to formulate a sound argument that the enumerated due process rights of the school children were being violated by segregation. The Warren Court needed an argument like this to stand up against the South and any dissent that would come from it. Comparing this to Brown v. Board is like comparing apples to oranges.

It was, however, "judicial activism" that denied freed slaves the right to become U.S. citizens (Dred Scott Case). It was "judicial activism" that perpetuated the Jim Crow laws of the south. Judicial activism has been a root cause of why MUCH of the injustice in the history of this nation has been allowed to continue.

As for Massachusetts, the outpouring of support was not what you indicate. The governor of Mass. stood up against the decision. The majority of Massachusetts legislators did, as well. They were under orders from the Court to legalize same-sex marriage. Even at that, they stalled. Furthermore, prior to this Massachusetts did not have any statute allowing civil unions . . . nor had any plans for one. (They actually attempted to dodge the issue by creating civil unions instead AFTER the decision but the court said that wasn't good enough.)

It is not the job of the Court -- of any court -- to make law, change law, or interpret law according to public opinion. This is a job reserved ONLY to the representative body of government.

And, I will say it again: What those Courts have done IS NOT "interpreting" law. It is inventing new law to satisfy the desires of the justices. TRUE "interpretation" of the law relies upon reasoning based in precedent and the text of current law.

For a court to say: "There is no law that says this . . . but this is the way it OUGHT to be. Now go make a law for us to interpret." This goes well beyond the Constitutional boundaries of their political and judicial responsibilities.

sounds to me like you're taking a case the outcome of which you support and denying that it was judicial activism. or maybe you and i differ on what judicial activism is. conservatives have long lamented brown v. board as being the epitome of judicial abuse of power.

Legally speaking, "judicial activism" is where a judge or justice believes that there are certain "guaranteed rights" which were not included in the Constitution or the Bill of Rights. Many of these rights were not included by the Framers because they had not been discovered in 1790 -- some still have yet to be discovered today.

These judges believe it is the role of the judiciary to "discover" these "rights" and then incorporate them into the Constitution through judicial decision-making. However, the average judicially active judge will at least reason out the existence of these rights. They usually attempt to show that because these rights have been in such high regard informally, they ought to be protected. Or they will reason out the existence of these rights due to other language in the Constitution. Most of the time they will use a progression of precedent to do this.

Some of the more radical activist judges (or decisions), however, have begun to feel less restrained by the need for "reason" and "logic". They, instead, base their belief more upon a personal sense of what is "fair" and "right" and will legislate those personal feelings of justice into the Constitution by judicial decree.

As for Brown: The decision in Brown was based upon an argument made by Thurgood Marshall that the 14th Amendment Due Process rights of students in segregated schools were being violated. He showed through reasoning and science that these students were being denied an opportunity to an equal education by state-imposed segregation.

Marshall showed that Jim Crow laws violated the Due Process Clause which reads: "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." When the Warren Court struck down segregation, it did not invent any new right. It finally had enough reason to show that de jur segregation was unconstitutional.

Even at this, the Warren Court did not force the States to write new laws. It simply struck down the old. It would be a few more years before the Court would even hesitantly get involved in the question: "How do we desegregate?" It would still be another decade before the Southern states began to comply.

True, the phrase "judicial activism" does get tossed about too much. However, when I write of it, I do so using the legal sense of the phrase. Therefore, one can not compare Brown v. Board to the Mass. decision. There is a great difference between finding that an enumerated Constitutional right has been violated and finding that, while there isn't a guarantee to same-sex access to marriage, there ought to be and then legislating that into the State constitution.

Also, I do not know a single conservative that believes, to my knowledge, the Brown decision was judicial activism. Of course I've never been to a Klan rally . . . and you might find one there. But then they're not "conservative" -- they're just kooks. (In the same sense that anarcho-terrorists are not "liberal" but are just radical criminals.)


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