The View From 1776

Is Judicial Activism OK?

Edward A. Kole presents an interesting argument in support of judicial activism as a long-range defense of the Constitution.

Posted by .(JavaScript must be enabled to view this email address) on 08/27 at 08:17 PM
  1. Interesting subject. But Edward A. Kole's and The View's argument is to long winded. The liberal attention span has its limits.
    Posted by .(JavaScript must be enabled to view this email address)  on  08/27  at  10:22 PM
  2. David,

    Not our problem. Liberals will just have to keep up. wink
    Posted by .(JavaScript must be enabled to view this email address)  on  08/28  at  04:23 PM
  3. That is just it David. The U.S. Constitution didn't and may not again, at some point, apply to state laws for the most part regarding 1st amendment just as the Court has so often said the 2nd Amendment doesn't apply to states.

    Have you ever asked yourself why the Supreme Court has never, not one, incorporated all of the Bill of Rights and didn't incorporate the 1st Amendment for 175 years?

    If we return to an original intent, then all of the State Constitutions will then be the guiding document for state laws, the U.S. Constitution for Federal powers but not either one having power over the other, certainly not the State over the Federal and the Federal only over the state in the limited areas covered by the Constitution which did not include the Bill of Rights over state powers on social and moral issues.

    That would mean a return to many things that evolved from our common law basis for how states function. I would think you would welcome that because it would mean each state could be different based on the majority in that state, their Constitution, and the representatives they elect to the State Legislature. I doubt any state would have ratified the U.S. Constitution if they thought it would usurp their ability to self-govern. Even after the U.S. Constitution was ratified we had states with "supreme power" in most areas and certainly all areas of social and moral law. Even in the 1900's when our last states came into the "Republic" they wroter their State Constitution based on that premise. Why, after over 100 years would they still write their State Constitutions the way they did if the U.S. Constitution could overrule them. Those Constitutions were ratified by the people and the U.S.Government accepted them as the guiding document for the state before they were admitted to the Republic.

    Again, this has nothing to do with how many feel it should be but how it was before 1950. What we have now is a recent phenomenon that only evolved since FDR's appointments and the democratically controlled Congress we had for 40 years that controlled Judicial appointments and Presidents who could only appoint those that the Democratic Senate would approve.

    However, what has many, like Teddy Kennedy concerned is that they feel Alito and Roberts may actually join Scalia and Thomas and use Kennedy as a swing vote to return to original intent for the Court's rulings. That would mean many rulings would be reversed but not necessarily change law, since that would then be up to each state. Since most states are much more "socialist" now, than they were, probably only laws like sodomy, banning same sex marriage, pornography, adult entertainment, type things would be changed and even those, only in a few states.

    Nothing wrong with that is there?
    Posted by JanPBurr  on  08/28  at  09:43 PM
  4. Re: "Justice Holmes flatly denied that there are any higher principles of morality or law that guide judicial decisions.
    Posted by .(JavaScript must be enabled to view this email address)  on  09/02  at  09:17 AM
  5. Re:
    Posted by .(JavaScript must be enabled to view this email address)  on  09/02  at  11:55 AM
  6. Re:
    Posted by .(JavaScript must be enabled to view this email address)  on  09/02  at  06:53 PM
  7. Let
    Posted by .(JavaScript must be enabled to view this email address)  on  09/05  at  07:09 PM
  8. (cont.)

    As I said before, it took our government less than a generation to find a formula for subverting this design. The device they used and still use to subvert our Constitution is judicial review. That they were able to do so had nothing to do with a flaw in our Constitution, but with a flaw in the character of men. Our legislature ought to have objected immediately and fiercely to any usurpation of their exclusive domain. Instead, they yielded in clear recognition of a new relationship shielding them from ultimate responsibility for laws they passed, making final interpretation the responsibility of the courts. It was a win-win for the Supremes and Congress, but a lose-lose for the People.
    Posted by .(JavaScript must be enabled to view this email address)  on  09/05  at  07:11 PM
  9. Edward Kole writes: "... Judges can only interpret the law. They cannot judge the law. Nor can they judge the guilt or innocence of
    Posted by .(JavaScript must be enabled to view this email address)  on  09/08  at  06:56 AM
  10. When I was researching some things about the Supreme Court, I ran across the "online encyclopedia" site that "anyone" can add things too. While everything this particular article has in it is covered in what I feel are more "reliable" sites, the coverage of those "Court decisions" was very clear. It also reveals better than others the "plan." The Court actually built a series of precedent that would allow more radical decisions later.

    Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees protect citizens against state governments. Because the Slaughterhouse Cases of 1872 found only a very limited number of privileges inherent in federal citizenship, the Privileges or Immunities Clause of the Fourteenth Amendment has not been used to incorporate the Bill of Rights. This has meant that the Due Process Clause was the means by which incorporation occurred.
    The genesis of incorporation has been traced back to either Chicago, Burlington & Quincy Railway Co. v. Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to observe First Amendment free speech protections. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, and the Sixth Amendment's implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict.
    As the incorporation drive picked up speed in the 1940s and 1950s, disagreements over the method that ought to be taken in making Bill of Rights guarantees enforceable to the States emerged. One school of thought, championed by Justice Hugo Black, was total incorporation. Black felt that the Fourteenth Amendment required that the States respect all of the enumerated rights set forth in the first eight amendments, but did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" such as those described in the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already to be found in the Constitution.

    I think what becomes obvious is that the "Court" decided that things needed to be done differently than previous Courts, regarding the U.S. Constitution and the Bill of Rights in it. Even though "we the people," had our "Rights" covered in our State Constitutions, the Justices felt they knew more than the majority in each state did that wrote and ratified those Constitutions.

    Were there things being done in States that needed to be corrected? Yes. But, the Congress of the U.S. with the power given it in the 14th amendment and the Court working within the rights guaranteed in state constitutions, were available without "centralizing" power at the federal level. In other words, as usual, the solution was worse than the problem becuase it took away our rights to self-govern in each state and gave the power to take more and more power from the states by the Federal Government which usually leads to economic failure because it is too costly, ineffective, and inefficient. It leaves the nation unable to compete in the world market we now have to compete in.
    Posted by JanPBurr  on  09/08  at  10:09 AM
  11. Post #11 reads in part:
    Posted by .(JavaScript must be enabled to view this email address)  on  09/09  at  02:06 PM
  12. The point though is that those amendment didn't apply to state powers. As the Supreme Court of that time said, they were limits on federal power, not the states. Not until the 1900's did the Bill of Rights apply to the states and then it was only through the due process clause of the 14th amenemdment as interpreted by the Courts even though they weren't given that power, Congrss was, by the 14th.

    However, we were designed to change and change often. Our founders knew we would change. Just as we did away with state religions, we changed the vote for women and 18 years. Our Congress eliminated segregation in 1875 and only the Court kept it for another 80 years by its overruling of the Congress.

    The Courts were never to impliment change, only rule on the changes we did make and if they were Constitutional changes. However,what the Courts did was not only rule some "changes" (laws) unconstitutional, but that previous Courts were wrong in their ruling the law was Constitutional. That is not stability a "nation of laws" can depend on but should be able to depend on.

    Every one of the changes the Court made could have been made constitutionally by the people just as all the other changes the people made were instead of unconstituitonally by the Courts. While Jefferson wasn't at the Constitutional Convention, Washington was and he made it clear the "majority" was to prevail and that included the ratification of the Constitution. Who's meaning of the words in the Constitution were to apply?

    Whose Intent Was It Anyway?

    It is one thing, of course, to claim that in seeking agreement the Framers used language that was open-textured and another that they themselves did not think their intentions should play a significant role in the interpretive process. It is tempting, in fact, to think that at precisely those points where the texts meaning is open to doubt, we ought to turn to what they originally had in mind.

    It is, therefore, a matter of some significance that the Framers decided on the last day of the Convention (September 17, 1787) not to publish any record of their deliberations. They decided instead to entrust all papers to Convention President George Washington. Throughout the summer too there was a strict code of secrecy, a "gag" rule on all those in attendance. No one was to mention a word about the proceedings to anyone outside the Convention. If we expect arguments about Framers' intent to bring the meaning of the Constitution more explicitly to light, the Framers themselves were certainly quite resourceful in making it very difficult, if not impossible, for us to recover their intentions. James Madison, who kept the most extensive notes during the course of the Convention, also refused to publish his journal until after his death

    or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . . . . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.

    The "intent" was to let the people who ratified it give the meaning to it "of the people." That is totally in keeping of a government, "of the people, by the people, for the people."

    So, even the "words" in the Constitution itself, were left to the people to define through "practice." That is why Scalia says

    The theory of originalism
    treats a constitution like a statute, and gives it the meaning that its words were understood
    to bear at the time they were promulgated. You will sometimes hear it described as the
    theory of original intent. You will never hear me refer to original intent, because as I say I
    am first of all a textualist, and secondly an originalist. If you are a textualist, you don't
    care about the intent, and I don't care if the framers of the Constitution had some secret
    meaning in mind when they adopted its words. I take the words as they were promulgated
    to the people of the United States, and what is the fairly understood meaning of those

    Posted by JanPBurr  on  09/09  at  05:21 PM
  13. Regarding Post #13:
    Posted by .(JavaScript must be enabled to view this email address)  on  09/11  at  07:21 PM
  14. eakole wrote:
    I believe Textualists, for their arbitrary taboos on interpretation,

    No, because "we the people" can change the Constitution of our state and the U.S. when needed and have many times in both cases. It was always the design of the founders that only "we the people" could make the changes since Judges couldn't be trusted not to put their own agenda into "interpretation."

    As Jefferson said"

    The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.

    To give the Courts power to do that is what has led us into the mess of socialism we are now in and probably won't get out of without hitting a place much lower than we are already at, and then and only then impliment the kind of changes Ireland did.
    Posted by JanPBurr  on  09/11  at  07:53 PM
  15. Regarding Comment # 10: I agree with most of what the author writes. I will address the comment, "Please explain, then, the frequent practice of judges to instruct juries they cannot judge the law, only determine guilt or innocence based on the law as written and presented to the juries by judges.
    Posted by .(JavaScript must be enabled to view this email address)  on  09/14  at  11:56 AM
  16. In the early days of this nation a couple of things worked for "democracy." As our founders on more than one occasion mentioned, our nation was a "religious" nation. While some of the founders were Deists, they held most of the views of Christians in common and there were "absolutes" that the nation was founded on that regulated both majorities and minorities in most cases. You could find the same laws in virtually every one of the 13 states and 12 of them even had state religions that while different, all based their religion on the Bible and the "Commandments."

    That "unity" of mind overcame a lot of diversity that would normally be found in a society. For 175 years, the laws for morality were basically solid and whether the Judge or the Jury was making a decision, it was based on common held beliefs about what "moral" behavior is. That has pretty much been replaced with "relative humanism" where there are few if any absolutes and "judging" is based on the individual's perceptions more than the "law." While the "intent" might change the punishment, the "guilty" verdict was based only on the law unless the people found the law so repugnent that they wouldn't enforce it on anyone.

    I am being too brief to cover this since it is a subject that requires not only a study of founding history but recent history since the "liberal Courts" took control of much of what was the realm of "the people" during the 1st 175 years of this nation.
    Posted by JanPBurr  on  09/14  at  02:17 PM
  17. That
    Posted by .(JavaScript must be enabled to view this email address)  on  09/26  at  06:24 PM
  18. Message #18 is burdened with several false assumptions. Although some are worthy of comment, this post will only address the following: ". . . This business of "changed circumstances" has been raised time and again, yet there are very few cases where it can, in fact, be shown they were necessary so much as preferred by 'self-appointed' interpreters.
    Posted by .(JavaScript must be enabled to view this email address)  on  09/28  at  02:05 PM
  19. Apparently, eakole didn't read the history of the U.S. regarding this issue. Remember too, the U.S. Constitution's Bill of Rights didn't apply to the States until much later (after the civil war). What the U.S. Constitution had or didn't have regarding slavery didn't matter since the State Constitution was the determining factor until later.

    Slavery was a huge issue at the founding of this nation and one that could have divided the nation and prevented its creation had slavery been denied.
    Posted by JanPBurr  on  09/28  at  10:05 PM
  20. Regarding Comment #20: Part 1 of 2 Parts

    Posted by .(JavaScript must be enabled to view this email address)  on  09/29  at  12:08 PM
  21. Regarding Comment #20: Part 2 of 2 Parts

    Moving to the Comment:
    Posted by .(JavaScript must be enabled to view this email address)  on  09/29  at  12:14 PM
  22. Nor did the Constitution apply to state powers. It was a limit on federal powers and the Habeas Corpus applies to federal powers and the fact the Federal Government couldn't suspend those rights. However, the States were under State Constitutions.

    There is much to the history of the debating of what powers the Constitution was limiting but it was the Federal level of Government that was being debated. The powers of the states to limit assembly, speech, religion, etc. and "rights" as we saw the ruling on Miranda and other things were all none-issues with states. The U.S. Constitution was not a document applied to sovereign states except in the very limited areas the state gave the Federal government, like defense, monetary policy, treaties, interstate and international commerce. The states were governed by the people of that state.

    You can't apply the Constitution in the area of slavery until after the Constitution was deemed to apply which was why we ratified the 14th amendment because even the Supreme Court in Dred Scott said state rights applied, not the U.S. Constitution.

    That ruling was in keeping with the "intent" of the people who ratified the Constitution of the U.S. I think it erred in some key areas regarding "property," and other "human rights" issues as far as it goes but, it was in keeping with the intent of the ratifiers who knew that without the allowing of slavery, the nation would have split and the Constitution wouldn't have been ratified. There was no intent to limit slavery in the Constitution but, it did provide the means for change through amendments which we did after the war with the 14th which gave Congress, not the Courts the power to change things. "Interpretation" of a different Court was not to be the means of change. "We the people" through the amendment process, however, could give the Federal government new powers they didn't have under the original Constitution and slavery was not one of the powers to regulate unless they did it under the commerce clause and what they did do, led to a war.

    Remember the Missouri Compromise was also shot down by the Court and that was the legislation that they had hoped would eventually lead to a "majority of states" supporting the end to slavery. Both good and bad legislation and court decisions led to the war over state's rights and slavery but, the original Constitution was not designed to stop slavery because it wouldn't have been ratified if it had.

    That doesn't make it "right" or "fair" or "just" but rather, simply the reality of the times when it was drafted and ratified. What they did do was, as I said, provide the means for change from "we the people" and not from the Court.

    As you demonstrated, each state had to cover in their state constitution what the people wanted because the U.S. Constitution didn't apply. As the Supreme Court said, the people in each state had the right to add or not add what they wanted in the rights to be protected and regarding the part of the Constitution you quoted, you didn't include the clause before it.
    The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    The 2nd clause doesn't mean states couldn't have slaves because that was a state issue at that time, not a federal issue and the federal government wasn't given the power over the states in that area either in the body of the Constitution nor in the amendments. States had to decide about "habeas corpus" and state powers themselves. In many states there were many things, like how people were interrogated, that the Court would say the U.S. Constitution applied as they did in Miranda but, until then, the State Constitution was the authority.

    Again we are not talking about was right but rather, what was the reality of the times when the Constitution was written and ratified which had to include slave states for it to be ratified.
    Posted by JanPBurr  on  09/29  at  01:44 PM
  23. Is Judicial Activism OK? Re: Message #23 Post 1 of 2

    Message #23 is burdened with so many errors that if ignored, I believe someone would repeat them. I also thought someone, other than myself, would call attention to that which conflicts with truth and fact. However, after waiting three weeks, my patience ended.

    23's litany of errors begins with the first paragraph and continues throughout. Because they are many, and because I allocate my time for other matters, I will comment only on the first paragraph.

    It reads: "Nor did the Constitution apply to state powers. It was a limit on federal powers and the Habeas Corpus applies to federal powers and the fact the Federal Government could not suspend those rights."
    Posted by .(JavaScript must be enabled to view this email address)  on  10/18  at  08:28 PM
  24. Is Judicial Activism OK? Re: Message #23 Post 2 of 2

    The 3d part:
    Posted by .(JavaScript must be enabled to view this email address)  on  10/18  at  08:32 PM
  25. Eakole:

    You are correct if you are talking about the last 100 years. I was referring to how the Federal Govermant and the U.S. Constitution was not the authority on social and moral issues. Also, the power of Commander in Chief is checked by impeachement and elections. However, again, that has changed greatly in the last 100 years. Since the people seem to accept those changes, it would seem to be as good as if the Constitution had been amended.

    For example, the State Constitution held sway over religious tests for office holders and you had to believe in God and be a protestant in some states and as when Jefferson repsoneded to the Danbury Baptists, he could do nothing about the fact they were under a State Religion expect to promise the Federal Government couldn't do what the state could.

    As in Baron vs. Baltimore, the Supreme Court ruled the Bill of Rights didn't apply to state powers, much of what went on depended on the wording in the State Constituion unless it was federal power being used.

    Howeve, that is all in the past and even though many would like to see a return to those times of state sovereignty, I doubt it will happen. The nation has moved to far into socialism to return to decentralized power as we had during the 1st 100 years of this nation. Until about the 1st few decades of the 1900, the federal government had little power over the states simply because it had no real power of taxation like it does now. It depended on the states sending the revenue to it. Also, the senate being appointed by the state legislatures made a differnce too. That, like the 16th amendment on taxation was passed in 1913.

    The Supreme Court ruled states had all kinds of rights to limit things more than what the U.S. Constitution provided until about 1925 and even after that until the FDR Court appointments started to move us more to the ability of the Court to use the 14th amendement to expand the power of the Court and the Federal Government.

    The key was the limited area of the Federal government which was only to have power over defense, monetary policy, trade, treaties, but, not over social and moral issues in the states. Those were the things that were "left to the states" and which the state constitutions had the authority to regulate. That is why states could have state religions while the Federal government couldn't. It is why states could have different eminent domain laws for state siezures than the federal government had for federal siezures. It is why state could outlaw profanity and pornography while the federal government couldn't due to the 1st amendment.

    Posted by JanPBurr  on  10/23  at  11:02 PM
  26. As the Supreme Court stated in Baron vs. Baltimore,

    Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p*250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

    But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

    That was the opinion of the Court that held for the 1st 150 years of this nation, but, it is not the current opinion of the Court nor of most voters or politicians.

    We have evolved from a time where states had almost supreme power over most moral and social issues even after the 14th Amendment, to a time where centralized power in the Federal Court and Federal Government trump almost everything a State and the majority in that state may want to do that used to be "constitutional."

    Is that bad? If it is what the voters want, it may be bad but, it is their "right" to make the changes either by amendment or by simply standing by and allowing changes to occur and not resisting those changes. I am only pointing out the differences. They may have been wrong before and right now. Or, maybe it is wrong now and was right before but, it is certainly different now than it was for the 1st 150 years.

    The view, right or wrong, for the 1st 150 years was a clear separation of powers between federal and state governments and states reigned supreme in most social and moral areas while the Federal government was limited by the U.S. Constitution from entering into those areas. Those were the areas "left to the states." There were many things the Federal government had no power over, such as religious tests for state public offices or state religions, or religious laws, or things like vagrancy, public intoxication, public profanity, lewd and lascivious behavior, adultery, etc. That is why one state could legalize prostitution while other states have outlawed it. It was a state by state issue as were the other limits on speech, press and behavior.

    Posted by JanPBurr  on  10/23  at  11:06 PM
  27. One has to read the laws of different states to see how much limitation was placed on individuals under state constitutions and how the Supreme Court ruled those limitations were constitutional even though they didn't meet the criteria of the U.S. Constitutions Bill of Rights. The Court ruled they were issues that had been left to the states to regulate and only when the Federal Government tried to limit rights would the U.S. Constitution's Bill of Rights prevail and limit the federal power being applied.

    Remember, the founders wanted a weak central government controlled by the States, not vice versa and until about 1913, and the 16th amendment, the federal government was very, very weak and states were very strong on social and moral issues that limited speech, press, and religious influence on legislation.

    Also, remember that even the recent Supreme Courts have never said all the Bill of Rights apply to the states only those amendments the Court has seen fit to incorporate.

    Perhaps they didn't understand the U.S. Constitution for the first 150 years and only in the last 70 years have we had Supreme Court Justices that do understand it. All we can say for sure is that the Court ruled differently for the 1st 150 years than it has since that period. Many laws that were "constitutional" for 150 years are now "unconstitutional," based on modern Supreme Court interpretation of the 14th amendment and other things in the Constitution regarding what was "left to the states."
    Posted by JanPBurr  on  10/23  at  11:10 PM
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