in his Forbes column -- this time criticizing the conservative judicial minimalist case against her:
Alas, the inescapable truth is that constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint. The public outcry over the Supreme Court's rendering of the "public use" language in Kelo v. City of New London was for its failure to use plain constitutional language to stop the egregious decision of New London to condemn Ms. Kelo's land literally for no reason at all. If that's judicial activism, then words have lost all meaning.
These observations have clear implications for the ongoing debate over the Sotomayor nomination. However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.
Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out--Roe v. Wade comes to mind--and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove's broadside won't get this campaign off to an auspicious start.
Well, that was the point. Judicial activism was coined as a phrase meaning judges substituting their own reasoning for the Constitution, so clearly by those lights the actual Kelo was judicial activism; applying the plain meaning of the Constitution and preventing the eminent domain would be judicial restraint.
Since the words that make up the phrase admit other meanings, it was certainly possible for people to come up with other meanings for the phrase. I believe that the campaign was mostly intentional, to discredit a popular phrase. In fairness, the phrase was chosen for the positive connotations that the other meanings of the words also have.
Judicial activism had a precise meaning by those who coined it. Their opponents (and too, erstwhile allies wanting to use it against other targets) have succeeding in muddying the language and confusing it.
Of course, these types of coinings are commonplace shorthand, "pro-choice" and "pro-life" being but two.
Okay, in that case, Judicial Activism describes something that has almost no backers and almost never (if ever) occurs. It assumes not only that "I'm right and everyone who disagrees with me is wrong" but it also assumes that "I'm right and everyone who disagrees with me is disingeuous."
And, in that case, it's a term that should be buried. It's code-word for "decisions I disagree with," and there's no legitimate use for such a code word.
I.e., you think Kelo was wrongly decided, so you think the Court ruled on personal beliefs. But who the heck are you to play God about the correct meaning of the Constitution?
the problem is that for decade mostly liberal activist judges have been imposing their policy preferences through their interpretations of the Constitution. They've been making it up as they go along to get their desired results. Of course, on the face of it, they claim that their rulings are based on the law and the constitution, but they are full of shit - Penumbras and emanations and all that. They should just be honest and come out and say they are imposing their beliefs because they think lawmakers were wrong. Sotomayor did that and let the cat out of the bag, but now has to backtrack and spin and try to continue the illusion because she accidentally was honest - a true political gaffe.
If there was one singular correct meaning, then why don't Scalia, Thomas, Roberts, and Alito not only vote the same way, but join only one opinion?
There was no way for the Court to avoid "judicial activism." The law said one thing and the constitution said the other?
I usually agree with Epstein, but must disagree that the SC should not have taken up Roe. Once judicial questions are raised, they need to be resolved, if we are to have a rule of law. That means ultimately the SC must be willing and able to take up any judicial question, even "political questions", whether it is ready or not. The case was badly argued. What the Court should have done in dictum was to indicate how it should have been argued. See my blog article on it here.
So is it Scalia/Thomas or Roberts/Alito that don't know the correct meaning of the Fourth Amendment (Arizona v. Gant)?
Most people have better uses of their time
Nothing in the plain text of the public use portion of the 5th Amendment requires that all takings be for public use - it's only a sort of preambulatory phrase that says takings for such use must be compensated. It doesn't say one thing or another about any other type of taking.
The truth is that the Constitutional framers didn't consider the regulatory state or the modern economy and didn't even contemplate whether such takings should be constitutional and if so under what circumstances.
Why have judges then, if the correct meaning of the Constitution is always obvious?
That was a judgment as to what is "reasonable", and the Constitution does not define the term, nor could it. It is terms like that that invalidate the Dworkian position that there is always a correct answer to any judicial question. When the Court decides what is "reasonable" it is not construing the Constitution, but exercising its discretion under its equity jurisdiction.
Not all SC decisions are properly viewed as constitutional construction. Many of its decisions are equitable or prudential. The Constitution is indeterminate for those, even though the decisions have to be made.
There are some theorists -- notably, "popular constitutionalists" like Mark Tushnet and Larry Kramer -- who think that courts should always defer to the constitutional interpretations of the political branches, so long as those interpretations have any plausible basis whatsoever. They're pretty admirable in their consistency. Most of the rest of us tend to use arguments about activism as a proxy for arguments about what the Constitution really means. Cases like Kelo and Parents Involved should give both sides pause about continuing to do so. If you condemn a court for "striking down the will of the people," it's harder to complain when a court says, "this is a tough call so we'll defer to the will of the people."
1. Judicial activism does indeed meaning substituting one's own personal preferences for the law. The proponents of actual judicial activism have been quite successful at redefining the term to mean overturning an act of the legislature.
2. There really is only one right answer.
People read it that way today using the English of our time, but if one learns the legal English of 1787 it was definitely intended as a restriction on the purpose for which property could be taken. Understanding the Constitution as its authors did means learning 1787 legal English as a foreign language.
From such study of 1787 legal English one also finds there is no federal power of eminent domain over state territory without the consent of the state legislature. The Takings Clause really only applies to nonstate territory, unless such consent is obtained IAW Art. I Sec. 8 Cl. 17.
Alright, but what about Oregon v. Ice? Alito split with Scalia, Thomas, and Roberts? (You can tell I'm working quite hard to look for these splits.)
If you take every assumption as an interpretation, than the entirety of the regulatory state is unconstitutional. Either we start society over from scratch, or draft a new Constitution.
Apparently you are not familiar with the concept of enumerated powers? You argument might be tenable if it weren't for Articles 1-3.
The Constitution is full of undefined terms. That does not mean, however, that those terms are devoid of meaning.
No, it comes from knowledge of the legal understandings and assumptions of that era, most of which were so clear that they never had to be stated and never arose in debates that could provide the kind of evidence you seem to want. In that era even mention of a taking under eminent domain was so controversial that the need had to be overwhelming.
I do regard most of the regulatory state to be unconstitutional in the sense that administrative agencies make rules they try to apply like law to other than their own agents, which is a violation of legislative nondelegation, or that courts defer to their findings rather than always requiring strict proof, thus shifting the burden to the hapless citizen. Administrative agencies need to be kept in their place as advisory only.
I thought it meant that the ruling went against the personal beliefs of the observer.
I know what you're trying to get at, to some degree - the Founders didn't contemplate private takings by states because they were dealing with the federal government, they didn't need to add such a limitation because there was no need to contemplate it. But even if I agreed with this, it would only highlight the difference between assumptions and intentions that I was making before.
I don't believe I ever claimed to know what the right answer is in every circumstance, only that there is a right answer. That's quite a difference.
So who got the right answer in Hamdi v Rumsfeld and Virginia v Black, Scalia or Thomas?
To ensure I am answering the right question, are you asking about the outcome of the case from a policy preference standpoint or about the reasoning and interpretation employed to reach the outcome?
If there's a right answer to a constitutional law question but the Judges don't know for sure what it is, and tries to answer the question the best way they know how, and gets it wrong, is that judicial activism under your definition?
If the answer is no, then judicial activism is something that practically never occurs, imho.
If the answer is yes, then we run into a problem of who gets to judge what the right answer is, and thus considering two judges who come to opposite results, which ones are the judicial activists.
Thank you for revealing your total ignorance of history. Now, it is quite clear that there is no reason to consider your opinion.
Yeah, Thomas Jefferson and Alexander Hamilton. They totally agreed about the meaning of the Constitution. Because, back then the English language was different. It did not contain any ambiguity.
You are clearly living in an alternate universe.
The Constitution in auto de fe.
Not only is that a cloak for judicial activism, it posits that no one today (except special foriegn language "experts")can understand the Constitution. If that's true, we should get rid of it altogether.
On what basis would you claim that the Constitution was intended not to be understood by almost all Americans, forever?
I never said there were no ambiguities. Just not affecting that point of law.
Actually, they did agree on most points of the Constitution, as did most people on most legal points in the era, constitutional, statutory, and common law. Concensus was the norm, dispute the exception. Those points seldom if every came up in debate, so we don't have evidence of them. There were a few points of disagreement, which did come up, and on which they and their followers focused. Some of those arose from ambiguities, some were policy differences that were underspecified by the Constitution.
The absence of evidence can be taken as the absence of controversy, either because of agreement on law or the lack of cases to bring attention to disputes on points of law. But the cases didn't have to be recent or in what became the U.S. Much of the shared understanding came from old English cases, like Dr. Bonham's Case.
Black is not quite so easy a case, but is still not that difficult and represents an example of the sort of muddle-headed special privileges that so mar First Amendment caselaw. Amendments are numbered in order of their adoption, and not their importance. Fortunately, like most First Amendment cases, the result doesn't really matter that much, and when it does matter isn't generally that important.
Look at Hamdi. Scalia and Stevens agreed on a position completely opposite of Thomas, while the rest landed somewhere in the middle. Are you seriously suggesting that Thomas's view, the most extreme and the one not signed on by any other justices, is correct?
Yes, I am. That a position is markedly different from others', or that only one of nine members reached it, does not make it wrong. From my reading of the prior cases and the relevant other materials, Justice Thomas's views and mine are almost perfectly congruent on this matter.
Just to clarify, and to distinguish myself from Jon Roland, I recognize and accept the "is-ought" dichotomy, and that I believe the Supreme Court got Hamdi wrong does not mean that I can freely ignore Hamdi's existence, and its probable lasting effect, given that only one justice got it right.
And, as I said in my earlier comment, this is a question of legal interpretation, not a policy one.
No, they wont put a dent in her nomination because the Senate Republicans are powerless to carry a filibuster and quite a few are terrified of being branded racists for even trying.
The public (at least most non-lawyers among us) typically focus on results not the abstraction of judicial activism. As long as Sotomayor avoids taking definitive positions on hot-button issues in her confirmation, she can wax poetic about how much fun she has making policy from the bench. The Republicans in the Senate will be right to criticize her for judicial activism, but they are going to get rolled.
And in many ways, this is what our country deserves. We just elected a President who promised:
For those not on the empathy list. Too bad. We used to pretend that justice should be blind. That seems rather quaint now.
Keep in mind that Madison kept the notes and it was likely that he emphasised and deemphasised matters for political reasons.
I think that absense of evidence means that we just do not know what the founders thought.
"This postmodernism is why the Divine Right of Kings needs to make a comeback."
To the extent that postmodernism erodes the rule of law, and I would argue that it very much does, it favors the rule of men, over which the Divine Right of Kings was considered an improvement.
I'd just as soon not follow you back to square one to begin with.
Sadly, in actual practice the Divine Right of Kings gave us nothing more than the prejudices of particular kings dressed up in a fancy theory of make-believe objectivity.
Much like originalism. :)
"Sadly, in actual practice the Divine Right of Kings gave us nothing more than the prejudices of particular kings dressed up in a fancy theory of make-believe objectivity."
That, and, you know, the Renaissance, but of course birth itself is merely a sociological construction of the Patriarchy designed to keep womyn down, rebirth thus being doubly suspect.
Remember who had the Divine Right before the Kings. And after.
It is not just absence in the Notes on the Federal Convention, but in the subsequent ratification debates. And, yes, the absense of controversy does indicate consensus. You won't find evidence of controversy on the issue of whether water is wet, either. Now in a way that is problematic for modern readers who don't think they can understand writers in another language unless there is evidence of controversy over usage, but that situation confronts linguists all the time and we manage to figure out what people meant when tney wrote in a foreign language. It is a matter of constructing a theory of their minds and how they apprehended the world. That can take a lot of reading of what they wrote and a long effort to "get into their heads", but it can be done. The test of whether you understand them is whether you can predict what they will say in the next thing you read, based on what you have read previously.
Nicely done, though I'm surprised you don't attribute the Renaissance to the Church, which you might very well do with good historical accuracy. Not many kings in Italy in the Cinquecento, at least not where all the action was (north of Naples).
Sorry, that doesn't fly. Rather, the notion that government could legitimately take privately-owned property for a non-public use was so inconceivable that in didn't occur to anyone to mention it.
No shortage of Princes, however. Though of course the Divine Right argument was a response to the good Niccolo's insights, so in Italia, at least, the rebirth preceded the invention of the Right.
Apologies for being so Anglo- (and to a lesser extent, Gallo-) centric.
As for the "After" above, to be clear I'm referring to the following:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Divine Right indeed.
Ah, missed that. Much better.
Actually, I'd attribute the Renaissance to the Turks, who liberated the documents of antiquity from Constantinople, which hadn't done much with them for a millennium or so. Plus, as a humanist, I'm much fonder of the present RC church (sexism notwithstanding) than the medieval version, so I might be biased.
The Renaissance can be properly attributed to the medieval Church about as much as any recovery we might someday enjoy can be properly attributed to our present government. Any institution of such overweening power will inevitably do a few things right, among many wrongs.
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