Problem of Modern Judicial Activism

“It can be of no weight to say, that the courts on the pretense of a repugnance, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” -Hamilton #78

This is an outstanding article (also see video below) that hits on some key points concerning what real judicial activism is.  Each side charges judicial activism whenever a decision is given that rubs their political liking.  True judicial activism is much more than this.

Citizens United and the Problem of Modern Judicial Activism « Public Discourse

The Supreme Court’s recent decision regarding corporate spending on political advocacy—Citizens United v. Federal Election Commission—provoked the widespread renewal of a longstanding liberal complaint: namely, that the conservative critique of judicial activism is mere hypocrisy. In this case, it was suggested, conservative justices, applauded by conservative commentators, struck down a democratically enacted law and overturned long established judicial precedents. Surely, the argument runs, this is judicial activism, and surely it reveals the critique of judicial activism as just a convenient tool by which conservatives decry decisions to which they object for political reasons, cloaking their real concerns in feigned constitutional principles.

Though common, this charge of hypocrisy sheds little real light on the questions in relation to which it is invoked, for several reasons. First, it does nothing to help us determine the relative merits of the liberal and conservative positions with regard to the proper exercise of the judicial power. After all, the charge clearly cuts both ways. In regard to Citizens United, liberals have complained not only about conservative inconsistency on the matter of judicial activism, but also about the supposed activism of the decision itself. Thus conservatives might well ask these liberal critics: where was your hot indignation about judicial activism when the Court, as recently as nineteen months ago, issued its ruling in Boumediene v. Bush? In that case, the Court, to widespread liberal acclaim, reinterpreted key precedents and struck down Congressional enactments on the basis of a hitherto unknown right of alien enemy combatants to habeas corpus review. Liberals no less than conservatives, it seems, can be charged with a selective opposition to judicial activism.

via Citizens United and the Problem of Modern Judicial Activism « Public Discourse.

Antonin Scalia and Stephen Breyer debate the Constitution

Two points given in this video, the Establishment and the Equal Protection clauses, are of special interest. It is these two that are often at the forefront of controversy in our modern time. Abortion, homosexual marriage, and separation of church state all grow from these two. The question before us all is: are these clauses “empty bottles” that can be filled with whatever liquid a Justice feels appropriate? Or, do we look for the meaning from those who adopted these amendments? I agree with Antonin Scalia, in that it is not the role of the Court to fill these bottles with their own meaning. This is not part of our Democratic process, and gives the Court power it was never granted. This power should be left to the People through the amendment process. Your thoughts, as always, are welcome.

The Federalist Society Washington, D.C.Dec 5th, 2006 A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation with Associate Justice Stephen Breyer and Associate Justice Antonin Scalia. Moderated by ABC News Legal Correspondent Jan Crawford Greenburg. This conversation clearly shows two very different approaches to the interpretation of the Constitution.

more about “Antonin Scalia and Stephen Breyer deb…“, posted with vodpod

From Mark Levin, Men In Black – Preface

This is a fantastic book that gives a general history of the Supreme Court.

The biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been mentally impaired, venal, and even racist.