Judicial activism, yea right.

The political right and libertarians in this country constantly complain about “liberal” judges legislating from the bench rather than upholding the Constitution.

Can any conservative or libertarian here give some examples of how judges have legislated from the bench? Are there concrete examples of how this has happened, or is the claim just campaign rhetoric?

And if liberals on the bench have been “activist” judges, and the right says activism is bad, how will any of these activist rulings ever be overturned if conservatives don’t engage in some activism of their own? Conservatives often complain that “we cannot do such-and-such until we can appoint some more judges to the bench and get the courts to change their mind”. But, isn’t this simply a campaign ploy whereby conservatives can say they want something, but then never take the responsibility for achieving it?

In legal terms a liberal is one who interprets things beyond the letter of the law. Like the right to privacy. It’s not explicit in any part of the constitution, and we can thank activist liberal interpretations for that right. I don’t think that liberal and conservative in a political sense is the same as in a judicial sense. And just about anytime the supreme court rules on a case that’s under public scrutiny, what you might call activism occurs. They interpret the statute in conjunction with precendent cases in order to come up with new rulings which are in effect new laws. Maybe no new law gets written, but enforcement may change or punishments. In that sense they construct law from the bench.

And yes, it is campaign rhetoric. It’s like universally applicable to all judges and saying that one is bad for doing it is nonsense because by the nature of thier jobs they kind of have to.

show us where in the constitution it says “seperation of church and state”, or “right to privacy” or “right to abortion…”


A right to privacy isn’t inherent in the 9th Amendment? It isn’t denied by the Constitution, which means it is a right that the people retain unto themselves.

1st, 9th and 9th Amendment, although the Court ruled in its Roe decision that should the Congress grant legal personhood to the unborn, the unborn’s 14th Amendment right to life and due process may take precedence over a woman’s right to have an abortion and thus make it necessary to revisit the Roe case.

The 1st Amendment does require separation of church and state since it prevents the creation of a state church while also prohibiting the government from interfering in churches that are otherwise created. The 1st Amendment doesn’t necessarily require separation of God/faith and state since the Constitution itself recognizes the existence of Jesus Christ.

It all boils down to the fact that judicial activism is a political matter, not a judicial one since activism to one group is justice to another and lawyers can dream up arguments in support of anything.

yes, lawyers can… that doesn’t mean they should.

and activists pass laws as well…


Rights that are retained by the people because they are not expressly denied by the Constitution need not be created because they already exist.

How so? What cases are we talking about? How, exactly did these cases erect this wall?

It’s implicit in the 4th and I think in the 9th. But it’s not expressley granted anywhere. It was construed in by liberal interpreters. Scalia, (even if you hate the bastard) wrote a great book on this stuff called “a matter of interpretation”.

The trick is whether tradition counts. The first amendment has been interpreted as separation of church and state since Jefferson, and, indeed, he intended it that way. The question here is whether judicial precedent trumps raw Constitutionalism. I would argue that it does, since said precedent can be traced back to the founding fathers.

Stare decisis!!!

Yeah . . . if you wanna be a dick about it.

the constitutional right to public drunkeness must be maintained?


The Constitution has always been a matter of interpretation. Interpretation didn’t become “judicial activism” until the Supreme Court decided to issue decisions that the political right didn’t agree with.

Go back to Plessy v. Ferguson. In that case the Court ruled that government discrimination on the basis of race is OK even though the Constitution says that the government cannot deny someone equal protection of the law. Using today’s conservative standard, how was that not judicial activism?

What about Bailey v. Drexel Furniture Co. where the Court ruled that Congress couldn’t tax a company’s profits simply because it used child labor even though Congress has the constitutional power to both lay taxes and regulate interstate and international commerce? Was this not judicial activism?

Jefferson had nothing to do with writing either the Constitution or the 1st Amendment. When the Constitution was written, Jefferson was in France and thus could not have played any direct role in writing the document. And when the 1st Amendment was written Jefferson was serving in the executive branch of the federal government as Secretary of State. If Jefferson had any direct role in drafting the 1st Amendment he was usurping legislative powers in violation of the spirit, if not the actual letter, of the Constitution.

Public drunkenness endangers the public safety. No legitimate right can do this. As a Justice of the Supreme Court was said, you don’t have a right to yell fire in a crowded theater when there is no fire.

Judicial observers may scorn judicial activism, but it is a fact of life which I applaud. “Original intent” does not address the needs of an evolving society, but the America that confronted the drawers of the Constitution at the time of its framing wasa a very different world than presents itself to present day Justices. The Constitution should be interpreted and applied against the background of the current exigencies.

Academic inquiry has explored the distinction that places judges into the interpretivist and noninterpretivists camps. These labels suggest the misleading idea that some judges believe constitutional decisions should be made by interpreting the constitution and other judges decide on extra constitutional grounds – that some obey it and some disregard it. Law serves the community best when it is presices and stable as possible, and this is particularly true of foundational and constitutional law. This provides a general reason for tying the interpretation of statutes and constitutional law to some historical fact that is at least in principle discoveravble and immune form form shifting convictions and alliances. But if this unilateralist constrainst is found to restrictive, the Court will recognize rights that the framers.

Sometimes certaintly of the law will result in a more stable, predictable, fairer, more just and otherwise more successful community. But this is not always true. The forgoing virtues are independent of any particular view of and the justice of segregation, capital punishment, and antiabortion legislation. A judge who accepts the virtues of stability and retraint may well be moved to give effect to his other political instincts and attitudes.

And when such judges are moved by pressing social matters, they should freely give way to their activist instincts and furnish a remedy to the case at hand. Conservatives would have Courts uphold statutes that outlaw consensual private sexual acts, blacks access to whites’ school, and forced prayer on children of no faith. Now that they have a near majority on the Court, they lust for an activist court to overturn settled prededent in Roe. So Conservatives sway with the issue. They are activist when it involves overturning a case they dislike, but support restraint hwen it comes to civil rights decisi ons.

Public drunkenness endangers the public safety. No legitimate right can do this. As a Justice of the Supreme Court was said, you don’t have a right to yell fire in a crowded theater when there is no fire.

where does the constitution explicitly state that?

it doesn’t.

“Rights that are retained by the people because they are not expressly denied by the Constitution need not be created because they already exist.”


This is a tool of the current political right. They have created division among the population, ie you are either liberal or conservative, or you are with us or you are against us. Formal rhetorical study knows what these are and are intended to do. Dare I say most of Americans do not know what this is and how it works.

To be honest, I now believe it is the right who is much more dangerous (potentially) than the left.

But make no mistake the left is really no better. There would simply be less bloodshed.

judicial activism is a farce, created to divide the public. the thing that separates judges is not their “conservatism” or “liberalism”, it is strictly in their interpretation style of the the US constitution.

see… en.wikipedia.org/wiki/Constituti … rpretation

this is basic gov 101 stuff.

go and actually read the judicial interpretations of your so called "conservative or “liberal” judges in specific cases. you may actually find that they contradict what you say. the key to determining if they are good judges is if they adhere to their own self proclaimed style of interpretation… all of which are accepted.

I would strongly disagree that Jefferson had nothing to do with the Bill of Rights. As to his involvement in writing it, since the Bill of Right was heavily influenced by Constitution of Virginia (which Jefferson was heavily involved in drafting), especially when it comes to Amendments like #1.