Activism in the Judiciary

[RightJungle]

Does anyone have examples of Judiciary Activism at either the Federal or the State Level - preferrably using actual case names so I can read them? I have been trying to get my hands around this whole idea and the conflicts arising from it. If you have web site links that would be very helpful. Also, if you have given this some thought and have an opinion to express, I would appreciate that, too.

Thanks,

Mary Lee

[Michael Stuart Kelly]

Mary,

Try here: Judicial Activism.

(Just playing with you.)

Seriously, the Wikipedia article gives a ton load of links and cases: Judicial Activism (the real deal this time).

Michael

[PDS]

Marbury vs. Madison.

I am only partially joking.

[Selene]

Mary Lee:

Take a look at this article by Mark Levin. He wrote a book a few years back Men in Black which specifically addressed, in superior detail, judicial activism. I think he is brilliant. His recent book Liberty and Tyranny specifically predicted the "soft tyranny" by administrative fiat that we are currently watching being created. As he noted, De Tocqueville warned us in the 1830's about this "soft tyranny"...we did not listen!

http://www.nationalreview.com/articles/220356/i-men-black-i/nro-q

"Activist justices come in many stripes but, as a rule, they use their lifetime positions to impose by fiat that which should be decided through the democratic process. They don’t believe they’re bound by the Constitution’s firewalls. Justices Stevens, O’Connor, Kennedy, Souter, Breyer, and Ginsburg are activists."

"Levin: Activist Supreme Courts are not new. The Dred Scott decision in 1856, imposing slavery in free territories; the Plessy decision in 1896, imposing segregation on a private railroad company; the Korematsu decision in 1944, upholding Franklin Roosevelt’s internment of American citizens, mostly Japanese Americans; and the Roe decision in 1973, imposing abortion on the entire nation; are examples of the consequences of activist Courts and justices. Far from being imbued with special insight, these decisions have had dire consequences for our governmental system and for society."

This should help direct your research.

Adam

[BaalChatzaf]

Marbury vs. Madison.

I am only partially joking.

No joke. Justice Marshall usurped a power not granted to the Court under the Constitution.

All appellate decisions should be based on Fact and Law. The Court has no power under the constitution to nullify a law passed by Congress. All it can do, constitutionally is apply the constitution and the existing laws to the case in question. Having said that, the doctrine of stare decisis would mean other courts would be bound to apply the same decision to future cases which are similar.

Ba'al Chatzaf

[RightJungle]

Marbury vs. Madison.

I am only partially joking.

No joke. Justice Marshall usurped a power not granted to the Court under the Constitution.

All appellate decisions should be based on Fact and Law. The Court has no power under the constitution to nullify a law passed by Congress. All it can do, constitutionally is apply the constitution and the existing laws to the case in question. Having said that, the doctrine of stare decisis would mean other courts would be bound to apply the same decision to future cases which are similar.

Ba'al Chatzaf

I didn't know that the Supreme Court did not have the power to strike down an unconstitutional law! I am way out of touch on that one.

Thank you all for your prompt responses. Very helpful.

Michael Stewart, I asked this for one really simple reason - want to know about ACTUAL activism. I think I may be getting too deep into all of this.

Again, thanks - and I do know how to use Google. It's just that......

Edited December 15, 2010 by Mary Lee Harsha

[BaalChatzaf]

Does anyone have examples of Judiciary Activism at either the Federal or the State Level - preferrably using actual case names so I can read them? I have been trying to get my hands around this whole idea and the conflicts arising from it. If you have web site links that would be very helpful. Also, if you have given this some thought and have an opinion to express, I would appreciate that, too.

Thanks,

Mary Lee

Back during the days of Justice Earle Warren and in connection with Browne v Kansas City B.O.E., Warren declared that his court is a "court of justice". Bollocks! The constitution says it is a court of Fact and Law. Warren did the nation no service by attempting to turn the Supreme Court into a Court of Equity rather than a Court of Law.

Ba'al Chatzaf

[RightJungle]

I have a few more questions related to this.

Given that Thomas Jefferson wrote in the DOI "to secure these rights Governments are instituted among men" what is there in the constitutional designations of the power of the three branches of government that will guarantee that these rights are not violated by the federal government or by the state governments that were guaranteed a Republican form of government?

Is the law that we are talking about the Constitution?

Did the Supreme court do the wrong thing when they struck down FDR's National Recovery Act as unconstitutional?

What does the 14th amendment mean if it doesn't mean that the supreme court can strike down laws?

Do I have an agenda? I do. I'm trying to figure out if our constitution actually protects individual rights and if the Supreme Court is supposed to concern itself with individual rights.

Any thoughts?

OMG, I had forgotten about this case that I found with Michael's help:

The slaughterhouse cases of 1893:

"Holding 13th & 14th Amendments Don't Guarantee Federal Protection of Individual

Rights Against Discrimination by Their Own State Gov'ts

<BR style="PAGE-BREAK-BEFORE: always; mso-break-type: section-break" clear=all>

Facts: A Louisiana law of 1869 created a state corporation for the slaughtering of livestock. The corporation was given exclusive power to slaughter livestock, and all other private slaughterhouses were required to close. Independent butchers could use the corporations facilities for a charge, but could not conduct independent operations.

Procedural Posture: The butchers not included in the monopoly claimed that the law deprived them of their right to "exercise their trade" and challenged it under the 13th and 14th amendments. The highest state court sustained the law.

Issue: Whether the 13th and 14th amendments guarantee federal protection of individual rights of all citizens of the United States against discrimination by their own state governments.

Holding: No. "

Good Grief.

Edited December 16, 2010 by Mary Lee Harsha

[BaalChatzaf]

I

Given that Thomas Jefferson wrote in the DOI "to secure these rights Governments are instituted among men" what is there in the constitutional designations of the power of the three branches of government that will guarantee that these rights are not violated by the federal government or by the state governments that were guaranteed a Republican form of government?

Is the law that we are talking about the Constitution?

Did the Supreme court do the wrong thing when they struck down FDR's National Recovery Act as unconstitutional?

Supremacy clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The power of the Supreme Court: "The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States and Treaties."

The court rules on cases not on the generality of the law. They can make a decision pertaining to a case. Any generality of that decision flows from the doctrine of stare decisis.

Ba'al Chatzaf

[RightJungle]

It helps a little that Tracinski's TIA Daily just came to me - 9th amendment is his subject. I'm a slow study, but I WILL get it. Thank you for helping.

[Michael Stuart Kelly]

Mary,

One of the things I think many people miss in discussing government is that human beings are complicated animals.

I know that sounds like a truism, but I have something very specific in mind. Humans are not only rational, they are also prone to violence driven by emotion, they are prone to seeking power and unfair advantages over others, they are prone to attacks of jealousy with destructive consequences, etc. In this sense, humans are not perfect.

(If they were, there would be no need for ethics.)

Now here's my point. If humans are not perfect, how is a system of governing them (or a system establishing the rules of human coexistence) ever going to be perfect? Such a system is not for robots, but for humans.

Even if you devised the perfect system, that will not make human nature disappear. Human nature will still be there in living human beings, and I assure you that the dark side of this nature will prompt some people to find a way to exploit any and all vulnerabilities they can find or provoke in the system.

So, one of the basic values of a governing body has to be to preserve itself--if for no other reason than protection against the bullies. If the people in a government act towards its destruction, they will have to take what follows. There is no way to eliminate that reality.

If what follows is not clear and viable (and better than the status quo--and I mean that in a practical sense, not an ideological one), with a designed structure previously examined and available for implementation, it will be winner take all and the bullies will win. They form gangs and bash folks on the head. That's all the structure they require.

That's why people who act against the government are considered enemies of the state and punished harshly. But not all people--and this is one of the beauties of our system.

For example, some of the present newly elected members of Congress (hopefully) wish to dismantle some of the government. But they have strong practical indications based on historical proof that things will be better for the citizens by doing that. Thus they are not considered enemies of the state, but instead reformers.

On the other hand, the Wikileaks guy (and collaborators) have moved to destroy the government, but he has no semi-guaranteed better future to present. He has provoked vulnerability in the government without a safeguard against the bad guys, so he is considered as an enemy of the state.

(I'm not judging that issue at this moment--merely using it as an example of how these things are classified from the government's view.)

If a choice arises between ideological perfection and self-preservation, you can expect any governing body to choose self-preservation. This is because a governing body is not just made up of laws, it is also made up of people. As to ideology, they usually don't throw it out during self-preservation actions, but they definitely put it in second place.

All this is important when considering legislating from the bench, which is what you have been seeking to study.

The very first case I know of that involved both preserving the governing body (the USA government) and actually legislating from the bench came with Chief Justice John Marshall in 1803. This, to me, shows a superb manner in which our Founding Fathers' system of checks and balances worked to improve the viability of the American experiment (essentially, our way of life over the alternatives). It showed where flexibility was possible and where the lines not to be crossed were.

In too many libertarian and/or Objectivist discussions on government I have observed, the default best presumption is a perfect system based on principles. I contend that the best system has to be one that is based on principles, but also takes human nature into account and it also survives.

You either go for ideological perfection in politics, or you go for how to make ideology work with human nature. I think the latter is preferable since it is easy to ignore reality in the first. I would prefer ideological perfection plus human nature, but I don't see how that will ever work. Not without major changes to human nature.

At any rate, there is no certificate of quality I know of that ensures that the original charter documents of our country were ideologically pure--nor that they should be. Consistency is a virtue, but so is self-preservation, and so is defanging the dark side of human nature as much as possible.

If three fundamental ideas bother you (or anyone) and you prefer to boil everything down to only one idea that takes precedence over all others, I strongly believe that the key concept is balance, not rights, although rights are crucial to my manner of thinking. (I didn't always think this way, but I've seen too much in life to believe that humans will become angels if only after-the-fact restraints are put in place.)

So back to Chief Justice John Marshall and legislating from the bench. He faced a dilemma and he used the system of checks and balances to establish a judicial precedent (which can be called judicial activism) that has impacted the life of every American since. It involved the midnight appointment of a judge (William Marbury) by the outgoing President John Adams--who was anything but friendly to Thomas Jefferson, his successor. Without going too deeply into it, Marbury didn't receive his commission, so he sued directly. Here is a description of what followed from A Patriot's History of the United States by Larry Schweikart and Michael Allen (pp. 162-163):

Chief Justice Marshall wrote an 1803 opinion in Marbury that brilliantly avoided conflict with Jefferson while simultaneously setting a precedent for judicial review--the prerogative of the Supreme Court, not the executive or legislative branches--to decide the constitutionality of federal laws. There is nothing in the U.S. Constitution that grants the Supreme Court this great power, and the fact that we accept it today as a given has grown from the precedent of John Marshall's landmark decision. Marshall sacrificed his fellow Federalist Marbury for the greater cause of a strong centralized judiciary. He and fellow justices ruled the Supreme Court could not order Marbury commissioned because they lacked jurisdiction in the case, then shrewdly continued to make a ruling anyway. The Supreme Court lacked jurisdiction, Marshall ruled, because a 1789 federal law granting such jurisdiction was unconstitutional; the case should have originated in a lower court. While the ruling is abstruse, its aim and result were not. The Supreme court, said Marshall, was the final arbiter of the constitutionality of federal law. In Fletcher v. Peck (1811), Marshall's court would claim the same national authority over state law. Chief Justice Marshall thus paved the first segment of a long road toward nationalism through judicial review. In the Aaron Burr treason trial (1807), when the chief justice personally issued a subpoena to President Jefferson, it sent a powerful message to all future presidents that no person is above the law.

Notice that Marshall imposed law where none was given, but it was within a very small area of procedure. This shows that the intellectual products of humans (like a constitution) reflect the incapacity of humans to make a perfect system for all times and cases. I hold this is due to humans being too complicated for any perfect system.

However, this is different than the "living document" approach of the Progressives. These folks seek to contradict the Constitution and expand their own power by baby-steps using case law, not fill in and make things work where the Constitution left a hole.

Since the Constitution is a small document, it left a lot out, too. And this was reflected by another case of judicial activism--one that had very positive effects on American history. I'll just give the next sentence as an example (a continuation of the quote above on p. 163), but the book gives quite a few examples. Notice that capitalism is not mentioned anywhere in the Constitution. Now read this:

Equally as important as judicial review, however, Marshall's Court consistently ruled in favor of capitalism, free enterprise, and open markets.

So not all judicial activism is bad. At least not from where I sit.

Once again, there is no key concept involved, but instead some key concepts: individual rights, self-preservation of the governing system, checks and balances. (There might be more, but these are the ones I have thought about so far.)

The underlying idea is that you cannot get rid of power in human affairs because of the way humans are made. And this makes a pure system of individual rights impossible in practice. But you can slice and dice power up within a republic so that individual rights have the best possibility of leaving the confines of written documents and discussions and jumping out into reality--to the benefit of all of us.

Michael

[RightJungle]

Michael, I’m going to just weave my comments among yours. Some of your statements seem to be UnObjectivish and unAynRandish. Please pardon my unnecessary new concepts.

I’m trying to understand the things being said about the Judiciary because I am deeply puzzled about why Individual Rights are not the first consideration of, well, all of us, but especially not of our legislatures, and sometimes of our judiciary. Neither Politics nor Economics are rocket science. All of us average intellects have the capacity to grasp the principles that govern these subjects and we need to do so if we are going to carry out our civic responsibilities of choosing our representatives in government according to their principles. So I will just get on with it.

Posted Today, 02:30 PM

Mary,

One of the things I think many people miss in discussing government is that human beings are complicated animals.

O.K. I get that.

I know that sounds like a truism, but I have something very specific in mind. Humans are not only rational, they are also prone to violence driven by emotion, they are prone to seeking power and unfair advantages over others, they are prone to attacks of jealousy with destructive consequences, etc. In this sense, humans are not perfect.

If Ayn Rand was alive today, she would be rolling over in her grave. Objectivism, according to Rand, holds that men are not born with a tendency toward any form of irrationality. It holds that each of us is a self-made man and that that is a result of being born knowing nothing with only physical sensations being integrated into perceptions happening automatically (like the higher animals). The rest is not due to proneness, but is, rather, due to what some of us have learned. Look at all the people who are not prone to emotional violence or a need for power over other people or are looking for a way to get an advantage over others. For instance, the power that I am seeking to develop right now is the power to persuade. The phrase that humans are not perfect implies a standard that no one can achieve. Looks to me like we are perfect human beings. We aren’t perfect possums or perfect horses. But we all have a thoroughly perfect humanness. I think that what you really mean is that people are not omniscient or omnipotent. That is absolutely true and as a result we make mistakes in judgment and in our knowledge attainment and integration processes.

(If they were, there would be no need for ethics.)

One of the many beauties of Objectivism is that it describes our need for ethics even if we are all alone on a little country acreage raising our own food and making our own clothes. “Morality is a code of values that guides the course of our lives.” ( Probably not an exact quote, but I’m thinking, not reading.) We need ethics just to survive another day (unless we have someone providing for our every need because we are in a coma).

Now here's my point. If humans are not perfect, how is a system of governing them (or a system establishing the rules of human coexistence) ever going to be perfect? Such a system is not for robots, but for humans.

This puzzles me, too. Why can’t beings who are in fact perfect humans develop a perfect system of government? We’re pretty smart. We’ve been around the mountain a few times. If we put our heads together, and get our best minds to apply themselves to the problem, what would be the barriers to that project?

Even if you devised the perfect system, that will not make human nature disappear. Human nature will still be there in living human beings, and I assure you that the dark side of this nature will prompt some people to find a way to exploit any and all vulnerabilities they can find or provoke in the system.

Well this one just stopped me. All I can think to say is that the whole purpose of our perfect system is to make it possible for human nature to be actualized and for the humans with that nature to flourish. I know that humanity has produced some pretty nasty people, but I don’t think “dark side” is a universal trait of human beings.

So, one of the basic values of a governing body has to be to preserve itself--if for no other reason than protection against the bullies. If the people in a government act towards its destruction, they will have to take what follows. There is no way to eliminate that reality.

You’ve talked in other posts about bullies. I have to admit that I have slid past those references without giving them much thought. Do you refer to those who would seek unfair advantages as bullies? Wouldn’t a perfect form of government virtually eliminate the opportunity to bully? I can understand how a governing body would want to maintain the stability of a reliable governing body, but is that a form of self preservation or is it a response to the need to be predictable for the benefit of the residents of that state or nation?

If what follows is not clear and viable (and better than the status quo--and I mean that in a practical sense, not an ideological one), with a designed structure previously examined and available for implementation, it will be winner take all and the bullies will win. They form gangs and bash folks on the head. That's all the structure they require.

That makes sense. You are talking about the anarchy that waits at the end of the life of a socialist country that has no freer country to keep it in business. I think also that you are referring to “plan for freedom” - I think…..

That's why people who act against the government are considered enemies of the state and punished harshly. But not all people--and this is one of the beauties of our system.

For example, some of the present newly elected members of Congress (hopefully) wish to dismantle some of the government. But they have strong practical indications based on historical proof that things will be better for the citizens by doing that. Thus they are not considered enemies of the state, but instead reformers.

On the other hand, the Wikileaks guy (and collaborators) have moved to destroy the government, but he has no semi-guaranteed better future to present. He has provoked vulnerability in the government without a safeguard against the bad guys, so he is considered as an enemy of the state.

(I'm not judging that issue at this moment--merely using it as an example of how these things are classified from the government's view.)

Yeah, Assange is a subject for another post.

If a choice arises between ideological perfection and self-preservation, you can expect any governing body to choose self-preservation. This is because a governing body is not just made up of laws, it is also made up of people. As to ideology, they usually don't throw it out during self-preservation actions, but they definitely put it in second place.

I’m guessing that you are referring to, among other incidents, GW Bush’s “I’m going to violate market principles in order to save the market” thinking. But, you know Michael, if our governors, along with us residents, are actually seeking moral perfection in our political principles, self preservation would be guaranteed as long as our principles are based in reality and recognize the human nature that makes the protection of our moral rights moral. (hmm, did I just say that?)

All this is important when considering legislating from the bench, which is what you have been seeking to study. <BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

I still don’t understand that phrase. I don’t understand how declaring an existing law to be either constitutional or not equates to legislation. It seems to me to be just a thumbs up or thumbs down. Nothing new is brought into existence by that. I am beginning to understand that making any decision and writing any opinion is considered to be Activism. Tara Smith’s articles on the judiciary decision processes describe the goofy idea of inactivist judges pretty well. Are you familiar with those essays? They are on the ARI site.

The very first case I know of that involved both preserving the governing body (the USA government) and actually legislating from the bench came with Chief Justice John Marshall in 1803. This, to me, shows a superb manner in which our Founding Fathers' system of checks and balances worked to improve the viability of the American experiment (essentially, our way of life over the alternatives). It showed where flexibility was possible and where the lines not to be crossed were.

Yeah, you did good sending me to Google on that case and others. What was I thinking? Actually I thought I was looking for examples of actual activism vs inactivism, but…..

In all actuality, I don’t understand what you are saying in that paragraph. I read the description of the case and I think I understood that – maybe. I’ll try to come back to this, too. Well, I’ve come back to it and it’s getting too late to say more. Maybe later. Maybe we all understand it the way you intended it to be understood.

In too many libertarian and/or Objectivist discussions on government I have observed, the default best presumption is a perfect system based on principles. I contend that the best system has to be one that is based on principles, but also takes human nature into account and it also survives.

This strikes me as another case of unObjectivish thinking, Michael. The Objectivist and, of course perfect, principles already consider human nature, so Objectivists talking about the principles of a proper government are already assuming that the rights, ethics, values, virtues, etc. are based on the requirements of human life and on human nature. This paragraph points both up at the prior paragraph and down at the following paragraph.

You either go for ideological perfection in politics, or you go for how to make ideology work with human nature. I think the latter is preferable since it is easy to ignore reality in the first. I would prefer ideological perfection plus human nature, but I don't see how that will ever work. Not without major changes to human nature.

At any rate, there is no certificate of quality I know of that ensures that the original charter documents of our country were ideologically pure--nor that they should be. Consistency is a virtue, but so is self-preservation, and so is defanging the dark side of human nature as much as possible.

I realize that all of our founding documents are not philosophically pure. But, if they could be, why shouldn’t they be? And what if it takes a hundred years or so to make them that way? There’s that omniscience problem again. And, gee whiz, Michael. The objectivist virtues don’t include consistency and defanging dark sides. Self-preservation is supported by the seven virtues which are rationality, independence, honesty, integrity, productiveness, justice and pride. (It took me a good three minutes to remember integrity – it’s a sign!)

If three fundamental ideas bother you (or anyone) and you prefer to boil everything down to only one idea that takes precedence over all others, I strongly believe that the key concept is balance, not rights, although rights are crucial to my manner of thinking. (I didn't always think this way, but I've seen too much in life to believe that humans will become angels if only after-the-fact restraints are put in place.)

I can tell you this, Michael – I’ve wrestled this need of mine to get to the one main consideration in politics for weeks and I’m still having to point to two things – the first that reality must always be the final arbiter or maybe the basis of all our thinking, and that individual rights must trump all other possible considerations. I’m either stuck here because it is true, or because I’m unable to see the truth. The notion of balance didn’t even occur to me, even in light of “the balance of powers.”

So back to Chief Justice John Marshall and legislating from the bench. He faced a dilemma and he used the system of checks and balances to establish a judicial precedent (which can be called judicial activism) that has impacted the life of every American since. It involved the midnight appointment of a judge (William Marbury) by the outgoing President John Adams--who was anything but friendly to Thomas Jefferson, his successor. Without going too deeply into it, Marbury didn't receive his commission, so he sued directly. Here is a description of what followed from A Patriot's History of the United States by Larry Schweikart and Michael Allen (pp. 162-163):<BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

Schweikart and Allen said:

Chief Justice Marshall wrote an 1803 opinion in Marbury that brilliantly avoided conflict with Jefferson while simultaneously setting a precedent for judicial review--the prerogative of the Supreme Court, not the executive or legislative branches--to decide the constitutionality of federal laws. There is nothing in the U.S. Constitution that grants the Supreme Court this great power, and the fact that we accept it today as a given has grown from the precedent of John Marshall's landmark decision. Marshall sacrificed his fellow Federalist Marbury for the greater cause of a strong centralized judiciary. He and fellow justices ruled the Supreme Court could not order Marbury commissioned because they lacked jurisdiction in the case, then shrewdly continued to make a ruling anyway. The Supreme Court lacked jurisdiction, Marshall ruled, because a 1789 federal law granting such jurisdiction was unconstitutional; the case should have originated in a lower court. While the ruling is abstruse, its aim and result were not. The Supreme court, said Marshall, was the final arbiter of the constitutionality of federal law. In Fletcher v. Peck (1811), Marshall's court would claim the same national authority over state law. Chief Justice Marshall thus paved the first segment of a long road toward nationalism through judicial review. In the Aaron Burr treason trial (1807), when the chief justice personally issued a subpoena to President Jefferson, it sent a powerful message to all future presidents that no person is above the law.

Notice that Marshall imposed law where none was given, but it was within a very small area of procedure. This shows that the intellectual products of humans (like a constitution) reflect the incapacity of humans to make a perfect system for all times and cases. I hold this is due to humans being too complicated for any perfect system.

I am having a problem seeing that Marshal imposed law. The case could be said to be involved in a milieu of legal stuff that established judicial review of congressional action. From what I’ve read a companion case related to Marbury, Stuart Vs Lair, was where justice Patterson strongly implied that it was constitutional for the Jeffersonians to abolish the Federalist circuit judiciary. That political power probably went a long way toward separating the men from the boys. In Marbury, Marshall just said that he was not going to get the commission. Did I miss something?

As far as the incapacity of humans in concerned, in one sense they were able to define a perfect system for all times and cases by making the law of the land, the Constitution, amendable. They set forth the procedure for doing so.

However, this is different than the "living document" approach of the Progressives. These folks seek to contradict the Constitution and expand their own power by baby-steps using case law, not fill in and make things work where the Constitution left a hole.

Yeah, and they did it by introducing the idea that the founders were a bunch of selfish old men just trying to protect their fortunes with a Constitution that they could control. Far out.

Since the Constitution is a small document, it left a lot out, too. And this was reflected by another case of judicial activism--one that had very positive effects on American history. I'll just give the next sentence as an example (a continuation of the quote above on p. 163), but the book gives quite a few examples. Notice that capitalism is not mentioned anywhere in the Constitution. Now read this:<BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

Schweikart and Allen said:

Equally as important as judicial review, however, Marshall's Court consistently ruled in favor of capitalism, free enterprise, and open markets.

So not all judicial activism is bad. At least not from where I sit.

That fits with what Tara Smith said, if you don’t like it the judiciary is overstepping their bounds. If you do like it, it’s just cool activism. That was definitely not an exact quote.

Once again, there is no key concept involved, but instead some key concepts: individual rights, self-preservation of the governing system, checks and balances. (There might be more, but these are the ones I have thought about so far.)

The essence of Capitalism, though not the term itself, is mentioned in the Constitution in the 9^th Amendment and the bill of rights. What makes Capitalism a moral economic system is its strict recognition of individual rights. In a way, when you say Capitalism, you are saying individualism and vice versa.

The underlying idea is that you cannot get rid of power in human affairs because of the way humans are made. And this makes a pure system of individual rights impossible in practice. But you can slice and dice power up within a republic so that individual rights have the best possibility of leaving the confines of written documents and discussions and jumping out into reality--to the benefit of all of us.

Michael

Know thyself...

I liked the poetry of the last sentence in the paragraph above, but I still feel the need to argue with the notion that human nature is somehow the enemy of individual rights when it is human nature that maks individual rights necessary. Also, I don’t see a problem with “power in human affairs” as long as the power sought is not the power over other people.

Well, that was an excellent exercise. I learned something about the way I frequently depend on incomplete knowledge. That should be helpful in the future. Thanks for taking the time that you did with me, Michael. I really appreciate the fact that the Oists take ideas seriously. (I had to look up Stare decisis, too. Who knew?)

[Guyau]

.

A nice review of the issue of judicial activism in the US Supreme Court, with cases, is here,

in Reason magazine (6/8/10 - 4 pages).

.

Edited January 2, 2011 by Stephen Boydstun

[GALTGULCH8]

Does anyone have examples of Judiciary Activism at either the Federal or the State Level - preferrably using actual case names so I can read them? I have been trying to get my hands around this whole idea and the conflicts arising from it. If you have web site links that would be very helpful. Also, if you have given this some thought and have an opinion to express, I would appreciate that, too.

Thanks,

Mary Lee

Mary Lee,

I just ordered a copy of The Dirty Dozen from www.lfb.com. It is about the twelve most egregious Supreme Court decisions. I had first obtained a copy from my local library to be sure it is a book I would want to own.

I would suggest as well Tom Wood's Nullification which is new to the market. It is well written and a pleasure to read. Dates back to John Adam's Alien and Sedition Acts of 1798 which prompted Thomas Jefferson and James Madison to write the Kentucky and Virginia Resolutions of 1798, respectively. They contended that the States could come between the Federal government and the citizens of the States if the Congress enacted a law which went beyond the bounds set in Article 1 Section 8 where the enumerated powers which were granted to the Congress were spelled out.

Regarding the Supremacy Clause check out the www.TenthAmendmentcenter.com You will find that the Feds must respect the limited powers in Art 1 Section 8 and only laws based on and consistent with them are supreme, not just anything they can get enough votes to do!

If only enough of our fellow citizens got these issues straight once and for all.

Notice how the question: Where in the Constitution do you find authority to do what you have done? has been asked in recent months. Notice how the issue appears to be beyond the ken of those asked.

On youtube.com you will find Bachmann Geithner Bernanke in such an encounter. Geithner and Bernanke keep referring to powers granted to them by Congress with no regard to the Constitution.

Pelosi was asked the question at a press conference about the Health Protection and Affordability Act and her response was, "That is not a serious question!"

When I asked my own Congressman face to face before a debate, he responded, "If we all did that, we wouldn't have Social Security and Medicare." Evidently he thought that was sufficient reason to violate his oath of office.

Enjoy. you will find that the 600,000 some odd members of www.campaignforliberty.com are cognizant of such Constitutional issues as are the members of the www.YALiberty.org which is on over 500 college and university and high school campuses. Both are growing and are all about enlightening those they encounter.

Here is their motto:

"Educate and inform the whole mass of the people... They are the only sure reliance for the preservation of our liberty."

—Thomas Jefferson

I am reminded of the scene from the original Star Wars when Princess Leia implores Obi-wan Kenobi to help as he is their only hope.

In our situation it is our fellow citizens and countrymen and women and perhaps the upcoming generation who hold the prospects of individual liberty in their hands and minds.

gulch

[geekgirl]

Mary Lee Harsha: I'm not sure a perfect system is possible, or even desireable. A blog I read once made the case that Freedom of Religion is not about religion, it's about thought. There's that Bill Maher line about how he "doesn't believe in an old man sitting up in the clouds that gets angry when I masturbate..." But there are people that do. And they need to be allowed to think that. People need to be able to believe whatever outlandish stupid crazy thing they want... because every great Truth started as a heresy. A perfect system would be sterile. I guess the best you can hope for is a framework that can withstand the battering and be flexible enough to survive. It's really quite amazing how long this constitution has survived, given the treatment its endured.

That being said, one of the most recent travesties of justice: Hamdan Vs. Rumsfeld. I mean, regardless of what you think about holding people at GITMO... Stevens just turned the whole applecart over and walked away. Total idiot.

[RightJungle]

Stephen Boydstun,

Thank you for the Reason article reference. I read it yesterday. About a week ago I started reviewing Tara Smith's "Why Originalism will Never Die" article. Both of these have helped me grasp the definition of "Judicial Activism" - FINALLY.

Gulch8.

I will read those books that you recommended as time permits. (The Dirty Dozen , Tom Wood's Nullification and the two websites). I've gotten involved in all of this political activism precisely because I do understand the need for me and our fellow citizens to understand what I/they are doing when they enter the voting booth. Here in Iowa, post election disappointments are already beginning to set in. Whew.

Geek Girl

Thank you for the reference to another case to use as an example (Hamdan Vs. Rumsfeld) I will read up on that as well.

By Thursday I hope to have a write up of my own - done to make sure I have understood the subject. I will post it here, and then hope for the same good and thoughtful responses that I've received from you all so far. That's longhand for "please let me know if I really get it or not."

You have helped me get a better grasp on this and I will continue to work on it until I have a "responsible citizen's understanding of the issue."

[RightJungle]

No write-up yet because politics is getting very busy in Iowa. But here is what I have grasped so far:

1) There has been a truckload of seemingly illogical and anti-individual rights decisions delivered by State and Federal Supreme Courts.

2) There have been half a truckload of seemingly logical and pro-individual rights decision delivered by State and Federal Supreme Courts.

3) Thanks to those of you who have sent me off to research the subject, I am now convinced that none of this is Rocket Science, so why was it so hard to get?

4) I read a half dozen decisions that were recommended to me by you. That was very helpful. Nothing like a good example to help clear up misapprehensions.

5) I have read about half of the Federalist Papers, with emphasis on Alexander Hamilton's 78th which addresses the judiciary. That probably gave me the best fuel for my argument against impeaching the balance of Iowa's Supreme Court. Our state constitution provides for the Court acting as an appellate and a CHANCERY court. That last is what gave them the o.k. to correct the inequality before the law of gay and lesbian couples who were not allowed to marry and now are. It also is the basis in law for them to direct the government clerks to issue marriage licenses to gay and lesbian couples. This is not inventing a new right or passing a new law. So they have not actually committed the malfeasance that their detractors are claiming.

In #78, Hamilton cleared up a question that was kind of be-deviling me - I see us electing our representatives by majority vote and our states put all of their electoral college votes on the candidate who wins the majority of votes in the states, etc. and I wondered how, then, does our government control against majority rule? Hamilton answers that question when he points out that the Constitution itself is the expression of the will of the people. It is the fact that it was written by their representatives in 1787 and was thereafter ratified by the states that made it the voice of "We the People". It allows for modification of the voice of "We the People" through a slow and rather painful process of amendment, but it can be done. In the meantime, the legislative branch is expected to pass laws that can be interpreted as constitutional. If they don't, the executive branch gets a shot at vetoing a bill that it judges to be unconstitutional. If he/she doesn't veto, then the judiciary is expected to bring their non-politicized judgment to bear on the constitutionality of the law and to strike it down if it is deemed unconstitutional.

No guarantees of perfection, but the cards were definitely stacked in favor of the final result being "the right thing."

I particularly like Hamilton's description of the judiciary as standing guard over the constitution against attack by the passions of the citizenry - passions that would cool and be seen as poorly directed after the passage of time. In addition the judiciary is protecting against "men of ill humours" who whip up the public against the constitution or executive or even the legislature. Our man of ill humours in Iowa is Bob Vander Plaats who has taken off on another "impeach the justices" campaign. I worry about him because of his response to my question about the minimum wage laws. He was totally for them.....and he's a Republican (I Know - So what?).

So, if you are still interested, keep those recommended sources of information coming. I will continue to study this subject because I really, really, really want to understand it as thoroughly as possible.

Also, I'm trying to make sure that I actually do understand the foundation of and the meaning of Individual rights. If you have any sources on that outside of The Virtue of Selfishness please point me to it.

Oh, one other thing. Congresswoman Michelle Bachman is going to be in Des Moines tomorrow to meet with the grass roots organizations leaders. I was invited, but asked one of the young men in the Des Moines Objectivist group to attend in my place. I think he is a smart, capable Objectivist, and I need to not be doing so much myself. He provided me with a Reason Magazine article in addition to the one provided by Stephen Boydstun that showed Scalia to be an imperfect champion of Individual Rights. I'm kind of curious about what the experienced Objectivists think of Michelle, if you do think about her.

Thanks for your attention and help, ya all.

Mary Lee

P.S. On Fox, their medical expert is arguing that the U.N. bill of rights says that health care is a RIGHT and he asked the question "How can we provide health care without doing damage to our Constitutional rights?" We're really making progress, aren't we. Nothing's easy anymore.

Edited January 21, 2011 by Mary Lee Harsha

[Selene]

Mary:

Excellent way to build an organization is to delegate and build your leadership team. Sending that young man to the Bachman meeting is perfect.

More on the judiciary later. I like the way you are working through this issue.

Adam

[syrakusos]

This is all pretty interesting, with a lot of hard work invested. Thanks to all. I agree with Bob that Marbury v. Madison was a usrpation of powers not delegated to the Supreme Court. Everyone accepted it all these years because it worked out well. The same thing could be said for the Lousiana Purchase. Those refect on MSK's point that a constitution for a government of people is not software for a robot.

In a sense, English Common Law (upon which ours is based) required so-called "judicial activism." The law was and is stated as a set of broad mandates. The court applies the law to the case at hand. That is bench-made law.

The other mode is what they call "civil law." By "civil law" that does not mean what we Americans call torts and private suits. Civil law is when the legislature spells out in detail how the law will be applied. The courts just make sure that the case at hand meets the laws as stated.

Realize that in Locke's Second Treatise, the branches of government we Legislative, Executive, and Diplomatic. The judiciary was not a branch of government. The courts were a community institution to protect against the government - as well as being mediators in private disputes. Thus, the king's men, with all the power of the crown behind them, still needed to come to a court of competent jurisdiction to get a warrant to do what they asked for. As it was, the court could make them wait while a court officer carried out the task.

The federalist Federal Constitution made the courts a branch of government. Perhaps that was a useful innovation to meet new circumstances, or perhaps not.

Under the English system, a policeman can arrest someone, bring them to court, and just say what he saw them do. The judge then looks for a point of law. If he can find one, the accused can be bound over for trial. The Louisiana Slaughterhouse case was cited above. That is often given as the point at which oorporations were acknowledged as individuals -- in a footnote. An earlier case in business law comes from the 1300s, the Carrier's Case in which a hauler opened a bundle of wool and sold some. The court found that no law had been broken as no law forbade that and in fact the goods were entrusted for transport according to the judgment of the carrier.

Those cases bear directly on our understanding of what law is, how it is made, and applied. You can say that the court erred. But it is an illogical leap to claim that "judicial activism" is somehow unnatural or alien to the law.

Edited January 21, 2011 by Michael E. Marotta

[Guyau]

Mary, thanks for #17.

Other sources on the foundation of and meaning of individual rights would be the books by Tibor Machan:

Human Rights and Human Liberties (1975) and Individuals and Their Rights (1989).

Also:

On the Foundation of Natural Rights– Jeffrey Paul (1988)

On the Fit between Egoism and Rights – Eric Mack (1998)

Concerning the US Constitution:

The Bill of Rights

Justice Black (1960)

[Selene]

Eric Holder's reverse judicial activism...

Smearing Supreme Court Justices

Posted: 20 Jan 2011 07:16 PM PST

(John)

Common Cause started as a bipartisan organization that had considerable merit, but as always seems to happen, it was taken over by the left and is now just another arm of the Democratic Party. Which is why the organization wrote to Attorney General Eric Holder to lodge an ethics complaint against Supreme Court justices Scalia and Thomas. This is the bottom line:

Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the

Citizens United

case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60[bee] motion with the full Supreme Court seeking to vacate the judgment.

So, why should Scalia and Thomas have recused themselves? Because they have participated in seminars sponsored by Koch Industries, and Koch Industries has benefited from Citizens United. Seriously, that is the claim. Of course, Common Cause adds a sinister spin:

In October 2010, news reports revealed that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the

Citizens United

decision.[1]

That revelation comes from a letter and information packet, dated September 24, sent by Koch Industries CEO Charles Koch to potential attendees of the next Koch retreat, planned for January 30-31, 2011 in Palm Springs, California. Common Cause has obtained those materials, attached, courtesy of Think Progress, which broke the story.

The description of the Palm Springs program, entitled "Understanding and Addressing Threats to American Free Enterprise and Prosperity," states that:

This action-oriented program brings together top experts and leaders to discuss -and offer solutions to counter - the most critical threats to our free society. ...Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas; Governors Bobby Jindal and Haley Barbour; commentators John Stossel, Charles Krauthammer, Glenn Beck, and Rush Limbaugh; Senators Jim DeMint and Tom Coburn; and Representatives Paul Ryan, Mike Pence, and Tom Price.

The Koch Industries retreats are highly political, and attended by an elite group of Republican donors and officials, conservative leaders, and captains of finance and industry. I happen to know a bit about this, since I was also, several years ago, a speaker at one of the Koch Industries events in Aspen. Common Cause describes them as "highly secretive" "political strategy sessions" which can be attended by invitation only. Based on my experience, I would describe them as extraordinarily high-level seminars that are, indeed, attended by a remarkably distinguished roster of guests. The speakers, with occasional exceptions, are also distinguished. The guy who spoke after me was Arnold Schwarzenegger; this was back in the days when Arnold was a Republican.

Common Cause writes that "no mention of such an event is listed on the Justices' disclosure forms for 2008 and 2009." I assume they are talking about financial disclosure forms, and that the justices' speeches at the Koch seminars weren't listed because they weren't compensated.

So, let's add this up: Justices Thomas and Scalia accepted invitations to give speeches, presumably on legal topics, to a high-level audience of business people and other leaders. They weren't paid for doing so. The events were sponsored by one of America's most respected companies. That company, like every corporation in the United States, had its First Amendment rights confirmed in the Citizens United case. And Common Cause seriously claims that Scalia and Thomas violated ethics rules by failing to recuse themselves from that case?

The claim is risible, but then, Eric Holder is the Attorney General, so perhaps anything is possible.

Edited January 22, 2011 by Selene

[Guyau]

I would like to flag an informative exchange that fell too quickly to back page.

. . .

5) I have read about half of the Federalist Papers, with emphasis on Alexander Hamilton's 78th which addresses the judiciary. That probably gave me the best fuel for my argument against impeaching the balance of Iowa's Supreme Court. Our state constitution provides for the Court acting as an appellate and a CHANCERY court. That last is what gave them the o.k. to correct the inequality before the law of gay and lesbian couples who were not allowed to marry and now are. It also is the basis in law for them to direct the government clerks to issue marriage licenses to gay and lesbian couples. This is not inventing a new right or passing a new law. So they have not actually committed the malfeasance that their detractors are claiming.

In #78, Hamilton cleared up a question that was kind of be-deviling me - I see us electing our representatives by majority vote and our states put all of their electoral college votes on the candidate who wins the majority of votes in the states, etc. and I wondered how, then, does our government control against majority rule? Hamilton answers that question when he points out that the Constitution itself is the expression of the will of the people. It is the fact that it was written by their representatives in 1787 and was thereafter ratified by the states that made it the voice of "We the People". It allows for modification of the voice of "We the People" through a slow and rather painful process of amendment, but it can be done. In the meantime, the legislative branch is expected to pass laws that can be interpreted as constitutional. If they don't, the executive branch gets a shot at vetoing a bill that it judges to be unconstitutional. If he/she doesn't veto, then the judiciary is expected to bring their non-politicized judgment to bear on the constitutionality of the law and to strike it down if it is deemed unconstitutional.

No guarantees of perfection, but the cards were definitely stacked in favor of the final result being "the right thing."

I particularly like Hamilton's description of the judiciary as standing guard over the constitution against attack by the passions of the citizenry - passions that would cool and be seen as poorly directed after the passage of time. In addition the judiciary is protecting against "men of ill humours" who whip up the public against the constitution or executive or even the legislature. Our man of ill humours in Iowa is Bob Vander Plaats who has taken off on another "impeach the justices" campaign. I worry about him because of his response to my question about the minimum wage laws. He was totally for them.....and he's a Republican (I Know - So what?).

So, if you are still interested, keep those recommended sources of information coming. I will continue to study this subject because I really, really, really want to understand it as thoroughly as possible.

Also, I'm trying to make sure that I actually do understand the foundation of and the meaning of Individual rights. If you have any sources on that outside of The Virtue of Selfishness please point me to it.

. . .

. . .

Concerning the US Constitution:

The Bill of Rights

Justice Black (1960)

~~~~~~~~~~~~~~~~

Bob, concerning #23 below, I doubt that that has been a detectible factor. One influence—expected and perhaps a little depressing—is studied here:

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009)

A couple of other works to the general topic of the thread are these:

The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (2006)

Measuring Judicial Activism (2009)

Edited January 22, 2011 by Stephen Boydstun

[BaalChatzaf]

In practical terms, we currently live under the omnipotence of Congress. Justice Blacks plea to the contrary, Congress will have its way. Why? Because the judges know that Congress cuts their pay checks.

Ba'al Chatzaf

[RightJungle]

Mary, thanks for #17.

Other sources on the foundation of and meaning of individual rights would be the books by Tibor Machan:

Human Rights and Human Liberties (1975) and Individuals and Their Rights (1989).

Also:

On the Foundation of Natural Rights– Jeffrey Paul (1988)

On the Fit between Egoism and Rights – Eric Mack (1998)

Concerning the US Constitution:

The Bill of Rights

Justice Black (1960)

Stephen,

A couple of weeks ago I received an order of books from mises.org and one of the books that I had ordered was Liberty & Justice edited by Tibor Machan. It contains 4 essays:

1) Justice, Luck, Liberty by Anthony de Jasay

2) The exercise of Liberty and the Moral Psychology of Justice by Jonathan Jacobs

3) Liberty, Gender, and the Family by Jennifer McKitrick

4) Libertarian Justice: A Natural Rights Approach by Tibor R. Machan

I had put the book in a stack in my office and was going to come back to it "soon". I will go ahead and read Machan's essay first.

I will chase down the others soon, too.

[kiaer.ts]

Mary, I suggest you consider that the term "judicial activism" is an anti-concept, a package deal uniting valid judgments which overthrow precedent based on a respect for individual rights (e.g., Lawrence v. Texas) with invalid judgments such as Kelo v. City of New London.

The concepts of precedent and of overturning precedent already existed before the term judicial activism was coined. The purpose of the latter term as a term of derision was to allow conservatives to criticize change as such without reference to the essential issue involved in evaluating legal decisions; not whether they hold with or overturn precedent, but whether they uphold or undermine individual rights.

The notion of judicial activism as something to be opposed is based upon the unstated premise that the status quo of some unidentifed era (the 1950's, the 1880's) was perfect and that change per se is bad.

Regarding political anti-concepts, does this:

“Anti-Concepts”

An anti-concept is an unnecessary and rationally unusable term designed to replace and obliterate some legitimate concept. The use of anti-concepts gives the listeners a sense of approximate understanding. But in the realm of cognition, nothing is as bad as the approximate . . . .

One of today’s fashionable anti-concepts is “polarization.” Its meaning is not very clear, except that it is something bad—undesirable, socially destructive, evil—something that would split the country into irreconcilable camps and conflicts. It is used mainly in political issues and serves as a kind of “argument from intimidation”: it replaces a discussion of the merits (the truth or falsehood) of a given idea by the menacing accusation that such an idea would “polarize” the country—which is supposed to make one’s opponents retreat, protesting that they didn’t mean it. Mean—what? . . .

It is doubtful—even in the midst of today’s intellectual decadence—that one could get away with declaring explicitly: “Let us abolish all debate on fundamental principles!” (though some men have tried it). If, however, one declares; “Don’t let us polarize,” and suggests a vague image of warring camps ready to fight (with no mention of the fight’s object), one has a chance to silence the mentally weary. The use of “polarization” as a pejorative term means: the suppression of fundamental principles. Such is the pattern of the function of anti-concepts.

sound like anything out of recent headlines?