In a comment to my last post, I was asked some questions in regards to constructionist and activist judges. I would like to take the opportunity to respond.
“What is the difference between a "constructionist" and "activist" judge? Who are some examples of each on the Supreme and Circuit courts?”
A constructionist judge believes that his job, as a judge, is to explain the Constitution. (Either in its literal meaning or based on how it was originally understood by those who wrote the relevant clauses.) An activist judge believes that the Constitution is a “living” document that must be interpreted in light of present morality or even based on International law. The activist view, in essence, is a license for judges to rule however they want; they become legislators more powerful even than Congress.
I think Scalia is a fine constructionist judge, committed to ruling based on constructionist principles. This does not mean that I agree with every decision he has ever made. I am sure if I were on the court I might make many different decisions, but it is only reasonable that people of good faith will have honest differences. Stephen Breyer is an activist judge; he has gone on the record supporting the use of foreign legal precedent in court rulings.
Barack Obama, in Audacity of Hope, talks about this issue and expresses his support for Breyer’s approach. I am sure Obama means well, but I see this approach as a sitting threat to a free society.
“Also, what are some cases which serve as examples of "reinterpreting" the Constitution to "create" a "civil right?”
The classic examples of activist rulings are Griswold vs. Connecticut, which established a constitutional right to use birth control based on a mythical right to privacy, which the court made up just for this occasion, and Roe vs. Wade, which established a right to abortion. Not that I want it to be illegal to use birth control or to have an abortion. If someone were to propose amending the Constitution in order to create a right to privacy I would support it. That being said, none of these things are in the Constitution and the people who wrote the relevant amendments did not intend to cover such rights. The whole concept of a right to privacy is hypocrisy anyway. Why does the right to privacy not allow me to grow marijuana in my own basement and smoke it there? Why can’t I make a private decision with my own doctor to sell my kidneys?
More recently the Supreme Courts of Massachusetts and California have ruled that homosexuals have a “civil right” to get married. Personally, I don’t have a problem with gay marriage. It seems perfectly reasonable for the government to revise its marriage laws to cover the changed circumstances in our society. But these courts, by inventing this new civil right, have declared that all those who do not actively support gay marriage are bigots, carriers of a type of belief that the government is allowed to actively fight against even with the believer's own money. Thus they have trampled the rights not of homosexuals but of all opponents of homosexuality.
“How extensive is this problem of judicial interpretation? Is it serious enough to be a deterministic factor in weighing your vote for the Presidency?”
At the end of the day, the practical differences between the parties are not that great. Both parties are pro-capitalism. Neither party is about to try to take down Wall St. On the other hand, both parties support some form of government-funded health care and government schools. No matter who is in power, billions will be spent on social welfare programs. For all the conservative talk about taxes, all of these things require money and people are going to get taxed to pay for these things. (There may even be a tax hike.) This may upset many radical Liberals but the United States military is going to consume a large chunk of government spending. The day when schools will have all the funds they need and the air force has to have a bake sale in order to buy bombs is not going to come anytime soon. I am not saying that any of this is good or bad, but the way our government is set up, with its two-party system politics, one is forced to keep pretty much to the center. The biggest difference between the parties is what sort of judges they will put in.
We are in the middle of a continued assault by radical Liberals/secularists to enforce their values on other people. This assault has been spearheaded by activist judges. For all the talk about Christian Fundamentalists trying to take over the country and threaten our liberties, for me the real threat comes from secularists. Their agenda goes way beyond creating a secular atmosphere and applying psychological pressure on people to conform to their views. They wish to take direct action that will physically force people to surrender their own personal beliefs.
2 comments:
Thanks for your prompt response! I appreciate your thoughtful response. I had some additional comments and questions in lieu of your post.
The Supreme Court based its decision on Griswold upon an interpretation of the 14th Amendment which created a category called "Substantive Due Process."
This interpretation was highly controversial because it created an articial theory to expand what the Court considers "fundamental rights."
However, this was seen as necessary by many scholars because of the Court's previous misguided rulings concerning two Constitutional clauses
1) It's puzzling interpretation of the "Privileges and Immunities" clause of the 14th Amendment (section 1) in the Slaughterhouse cases (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0083_0036_ZO.html)
2) The Court's refusal to give substance to the 9th Amendment of the Constitution because its text does not identify a process to construe these unenumerated rights (forgive me, I don't have the particular citation offhand, but this was Scalia's statement; I can look up the citation upon request if needed).
In essence, I agree that the interpretation of 14th Amendment Section 1's "due process" clause in Griswold was puzzling, but not totally unwarranted. The Griswold opinion itself was poorly written; but its interpretation of the 14th Amendment as a whole was arguably "reasonable."
In the alternative that the interpretation in Griswold was "unreasonable", it could be seen as necessary because of the Court's arguably misguided interpretation of the "Privileges and Immunities" clause of the 14th Amendment, which scholar Charles Black has called the worst decision in the history of the Supreme Court (see Charles Black "A New Birth of Freedom", Chapter 2).
Furthermore, the Supreme Court has consistently ruled that the 9th Amendment should not be given an substantive value. In other words, many Justices, including Scalia, have said that the 9th Amendment is merely an afterthough (the amendment is mere precatory language) and does not allow the Court to create new rights; not because the Court does not have the raw power to do so, but because the 9th Amendment does not offer judicial guidance in how to determine these unenumerated rights.
Sorry to be long-winded, but would you agree with the Court that the 9th Amendment is devoid of substance; and that the Privileges and Immunities Clause is also devoid of creating new substantive rights?
My understanding of the 9th amendment is that it was put in to satisfy opponents of the Bill of Rights like Alexander Hamilton, who believed that a bill of rights was not needed and that it was counterproductive since it implied that some rights were protected and not others. At the end of the day the 9th amendment does not give the court the license to create new rights, particularly not rights that the Founders would not have understood.
I am not certain yet as to my opinion on Privileges and Immunities Clause and what to think of the Slaughterhouse Cases. Thank you for bringing these issues to my attention.
Post a Comment