"He will construe the Constitution and statutes narrowly, and sometimes literally, and waste no sympathy on people who come to court hoping for a more expansive interpretation of their rights."
Exactly, an Activist Judge would be so "sympathetic" that he would "expand" or "legislate" from the bench, because he "feels" like it. Liberalism has more to do with how you "feel" at any given time. Liberal judges act upon this "feeling" and "act" upon it by "finding" new rights in a document that is hundreds of years old.
And you are complainging about that? Gee's louise, 9 men and women who want to limit their role to a defined standard and allow the people to elect representatives to create the laws and and excutive branch to enforce them.
You guys argue about conservative activism, and you have no idea what the term even means.
Every now and then, the truth slips past your mental radar and slips out of your mouth.
Posted by carpediem at January 15, 2006 07:08 AMcrappy fish..why not just go fuck yourself? really think anyone cares what you have to say let alone read it? asswipe bush suckers like you are a dime a dozen..they love you over at lgf's..why not waste your time over there? fucking losers...
Posted by headxray at January 15, 2006 07:27 AM9 men and women who want to limit their role to a defined standard and allow the people to elect representatives to create the laws and and excutive branch to enforce them.
What the hell are you talking about? You completely misunderstand the role of the courts in this chunk of our society.
Your statement, from the perspective of this nominee and the desires of this administration should be stated as: 9 men and women, regardless of their roll as jurists, should only rule by statue, and only then in the favor of big business and narrow political interest groups, always with a unitary executive (king) as their principal guide for decisions.
How Alito rules on the 2nd ammendment cases that will come to him: "I concur. Unless a person is part of a well regulated militia, they have no right to own a gun. Says so here in the Bill of Rights."
You guys argue about conservative activism, and you have no idea what the term even means.
Which parts? The part where conservatives want limited government? The part where conservatives don't deficit send? The part where conservatives protect individual liberties? You are not a conservative. You are a neo-con. The differences are not subtle.
Posted by phidipides at January 15, 2006 07:47 AMCarepedeim
"Remember it is a constitution we are expounding"
CJ Marshall
An expansive view of individual libereties is not legislating from the bench you idiot. Due process is not merely a legislative function. Clearly a legislature could say the only process you are due is the governor's dtermeination that you are guilty or Congress could say that the only process you are due is that President's determination that you are an enemy combatant. The consitutional consideration would not end there, ya moron.
Legislating from the bench is substutiting the judiciaries judgment for the legislatures judgment in enacting statutes.
See for example, Lochner v. New York, Morehead v. NewYork, Schecter v. New York, U.S. v. Butler for the original examples (Free market per se good, legislatures regulation per se bad).
The problem is a legislature has adequate means for gathering evidence, holding hearings and (before the GOP perfected election stealing) was accountable to the electorate, whereas the judiciary does not and is not. This is perfectly illustrated by the modern example of US v. Morrison. Congress did all of that and the 5 old farts decided it didn't matter- their judgment on economic regulation was better.
The once constant is conservative activist judges striking down legislated economic legislation they don't like. I defy you to give me liberal examples of this.
Dear Molly Bloom,
I don't have a great deal of time to analyze everything at this time. But I was intrigued by what you called a recent case in U.S. v. Morrison.
My caveat is however, that I've always hated the intrusive way that the Supreme Court has used our Commerce Clause to meddle with the states. This began during the reign of FDR in applying many of his new deal legislation. The FEDs tried to exert their powers over the states using the Commerce clause. Per the SCOTUS almost anything "effected" commerce. But I always disagreed with the "means to the end".
Now to Morrison, the Court ruled, in my brief read, that a women that is raped can not sue under a FEDERAL Law of Gender motivated violence that was enacted by a law using the authority of the Commerce clause.
My problem is what does Rape have to do with Commerce. Considering my earlier caveat, it sounds to me at first glance as being a good ruling.
I'm also concerned about any gender-motivated law. It seems a guy that rapes a girl is doing something wrong, no less so then if he were raping a male. Why the special treatment, but thats not the point of the case.
Here is their relevant opinions. Please tell me how you disagree.
"Similarly, gender-motivated crimes of violence are not, in any sense, economic activity. Second, like the statute at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ regulation of interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce to come within Congress’ authority, Congress elected to cast §13981’s remedy over a wider, and more purely intrastate, body of violent crime. Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.
So on its face, I think the reasoning is sound. Why give so much more power to Congress by "expanding" and "imagining" authority in a Constitution that does not grant such authority.
This is an excellent example of feel goodism.
Sure it feels good to help the rape victim, but not by "feeling" a new law out of the Constitution.
Any more good examples?
I welcome your reply if you have time and if I have time to reply.
I'm going to a funeral today. A very good liberal friend of mine, age 46 died suddenly this week. Brain Anyuerism (sic) left six children and a wife behind. (good catholic) So now I must reflect on how very fortunate I am to be living, in good health, in America at this time in history.
Posted by carpediem at January 15, 2006 08:19 AMBroder can feel Kevin Drum's lukewarm breath -- it would be bad form if it were actually, you know, hot -- on the back of his all-too mortal neck.
Then someone else gets to move into Drum's slot -- Yglesias, perhaps.
It's the circle of life.
Even Deans don't live forever, and someday the Moustache of Understanding will droop its last.
Posted by Davis X. Machina at January 15, 2006 08:51 AMCrappy, could you please, for the sake of my scrolling finger, be stupid more succinctly? Really, pal, you're giving me cramps, here.
Posted by iamcoyote at January 15, 2006 08:58 AMleft six children and a wife behind.
Terrible shame. I hope he had plenty of insurance and assets. These end of life events have been known to devastate "good" health insurance plans and lead to bancruptcy. But if she gets wiped-out, she gets to live in the public housing that you so despise. Her kids will be on Medicaid, at your expense. If they attend state supported universities, it will be at your expense, as their K-12 education happens to be if they aren't in a private school. Oh man! If those kids are young they will suck the life out of Social Security for years!! Damn, this could be horrid for you and the neo-con America in which you live! You need to keep in touch and find out about this stuff so you will know if you can associate with them in the future.
So on its face, I think the reasoning is sound. Why give so much more power to Congress by "expanding" and "imagining" authority in a Constitution that does not grant such authority.
Assloads of blather, and absolutely nothing germaine to the discussion. Amazing!
I think this "activism" issue really boils down to whether the social or economic legislation is viewed by the new breed of partisan Republican "judge" as progressive or reactionary. The former will be struck down and the latter will be declared constitutional.
Conservatives applaud striking down progressive federal economic and social legislation as beyond the Congress's commerce power (obvious "judicial activism"), but deplore the striking down of socially reactionary state laws infringing individual rights. ("courts shouldn't legislate, blah, blah, blah").
The new right wing on the supreme court will declare unconstitutional federal social legislation passed by Democratic Congresses, but find federal social legislation passed by Republican Congresses to be just fine.
Hence the federal Partial Birth Abortion Act of 2003, passed by a Republican Congress. Under the narrow view of Congress's commerce power long championed by "forgotten constitution" reactionaries, what's the basis for for this little piece of social legislation?
"Progressive" federal legislation like the Violence Against Women Act and the "school zone" gun legislation was held to be beyond the commerce power, hence unconstitutional, according to the reactionary partisan majority of Supreme Court. We'll see what they say when "conservative" moral legislation (like the Partial Birth Act) passed under the commerce power gets to them.
I'm pretty sure I know what our partisan Court will do.
Posted by euzoius at January 15, 2006 09:08 AMStates rights is it?
Posted by Ken Melvin at January 15, 2006 09:15 AMcrappy..tell me what it is that motivates you to coninually make an asshole out of yourself here?
Posted by headxray at January 15, 2006 09:21 AMGiven that Congress went out of its way in Morrison to show the economic connection, I would have to say that the majority decision is nothing but an actvist judiciary substituting its judgment for Congressess. The majority ignored they the legislative findings because they didn't like it. Can't get much more judicially active than that.
Posted by molly bloom at January 15, 2006 09:57 AMCarp, I have asked you a couple of times now to explain to me how Democrats are haters of America? You have said this so often, and now I am calling you on it for the third time. We have spent several years talking about freedom and rights, and you say we hate America. Come on Carp, put your money where you big mouth is. I really want to know how you base this belief, and is it based on facts?
Posted by Judith at January 15, 2006 10:09 AMRe: Judith=Keep reminding me. I'll respond sooner than later, but I want to attempt to follow the topic when I can.
Re: Molly and Ezzy. Since you both made somewhat of an attempt at discussing with me the topic of this thread.
The commerce clause had a specific purpose in our Constitution. It has been bastardized by the Supreme Court over many, many years. I agree with Molly'sexcellent argument. The fact was, as you tell me, because I didn't read the congressional record, but that Congress found a way to frame their rape law into an understanding that it was part of the economic commerce of this country. (This was a trick us lawyers use, we find out what the Supreme Court has said is valid reason, and then we frame our arguments around their opinion, regardless of the truth. i.e. Rape has nothing to do with commerce.) So at least Congress was making some valid attempt at making law that was applicable to our Constitution. However, this still means it must pass SCOTUS' preview, which I happen to agree with implicitly, was correct.
Second, Ezzy made two comparisons which were wrong and were right. True, Conservatives don't like the Feds trying to tell the states what to do by using the commerce clause as means to an end. And, (and here is the difference) we don't like the Feds telling States summarily how to determine what is and isn't socially acceptable by a standard that is created by whoever is sitting on the Supreme Court of the U.S. at any given time. I believe you may be referring to the recent Sodomy decision that the Supremes ruled was illegal due to thier NEW and KEEN sence of knowing what is and isn't moral.
In 30 years, we will have an entirely new Supreme Court that will have been brought up in an entirely different America. Those Justices are just now graduating from law school(Although you don't have to be a lawyer to be a Supreme Court judge-little trivia there.) They will bring with them their experiences from now until they sit on that Court. Just like Alito is bringing the reactionary hippie 60's with him, so also will these new justices bring with them nut cases like Michael Moore, Cindy Sheehan, and perhaps, as you guys hope, the impeachment of President Bush....
My point is, however, long winded that it is, is that I hope we don't exclusively rely upon big brother/sister SCOTUS to tell us how to behave morally and ethically. I hope that our societal mores will control our legislation and that SCOTUS will respect our traditions and our basic civil rights are are clearly defined in the Constitution.
However, Ezzy, you did make a valid point. You state that the Federal restrictions on Partial Birth Abortion was utilizing the same Federal Statutory laws that was used in the Rape case cited by Molly. If so, then I would agree, abortion doesn't seem to have much to do with commerce either. (Then again, they found a resturant/hotel in Atlanta that got a chicken from Alabama to be subject to the Civil Rights act visa via the commerce clause. circa 1965) So again, I may agree with the ENDS, I just disagree with the means.
I'm not up to speed on any of the Federal Laws regarding abortion. I am however, convinced, as most constitutional lawyers agree, that Roe, like Plessy, is stupidly written and one day will be reversed. Then, each State will have to write their own laws, like in Georgia where we don't have a single Damn Casino, so we go to Mississippi or Las Vegas, so to will abortion never ever be deemed completely illegal. Heck if Americans want it so much, make a constitutional amendment spelling it out, and 2/3rd approval will guarantee it for eternity.
Thanks for some good intellectual and factual comebacks. I love good debate.
Posted by Carpediem at January 15, 2006 02:45 PMJudith: On a recent visit to Sea World, I was amazed at JUST how BIG the mouths WERE on the carp.
Posted by TIKI AL at January 15, 2006 03:42 PM… Conservatives don't like the Feds trying to tell the states what to do ...we don't like the Feds telling States ...what is and isn't socially acceptable... …Posted by CarpediemNone of that is true. RepubliConTarians have no problem with the Federal Government overriding state laws in regard to vote counting, legalization of marijuana, and the Right to Die, to name but three issues. This is simply another example of right wing hypocrisy. You complain about activists when they are following the law and the constitution and not your specific agenda. Posted by Mike at January 15, 2006 05:14 PM
Dear Mike, we are talking in generalities and hyperboles.
I have never, nor will I ever suggest that Republicans are always correct. I abhore the moderate Republicans and wish we had a true conservative/libertarian type of party. So I agree to the degree that I think the Republicans were wrong on the Marijuana issue, although, I can not, in all honesty, tell you anything about this issue, except of course in personal beliefs.
As to Right to Die, I am obviously at a loss. There are many on both sides of the aisle that oppose this. I, however, am not one of them. Again, this is another legislative issue. If the voters don't like 'em, then kick 'em out. The Republican party is anti-Trial attorney, something I hold near and dear to myself and my bank account. I still support them, and I also grab them and try to explain how they are wrong. Unfortunately, most politicians care little about most issues, other than in just getting re-elected.
You show me somewhere, where there is a concerted, intellectual debate of these two issues without having MotherJones magazine and their ilk being in the fore front, and I'll tell you that you might have a chance to change it in years to come. I'd be in good company with the likes of William F. Buckley.
Who here on this list is surprised when politicians act "politically"?
Oh and as to your voting comment.... you still have injured feelings about that. I've posted at it ad nauseum. You are just plainly uninformed and too biased to explore that issue with any degree of honesty.
Thanks for the reply.
Posted by carpediem at January 15, 2006 05:41 PMOn a recent visit to Sea World, I was amazed at JUST how BIG the mouths WERE on the carp.
TIKI AL, And to think we still feed them regularly.
Posted by bbtb at January 15, 2006 06:18 PMI abhore the moderate Republicans and wish we had a true conservative/libertarian type of party.
Piffle. You're defining 'real conservative' as being neo-con. Sorry, but a real conservative would not recognize you by anything I've read from you, and I've known many. They would tar you and apply feathers liberally, then ride you out of town on a rail.
Don't confuse yourself with conservatism or libertarianism. You are neither. You are a neo-con. The epitome of Laissez-Faire Anarcho-Communism. NEO-CON. Nothing more.
Posted by phidipides at January 15, 2006 06:21 PMPHI-PHI, as if you would know a true conservative if one came up and bit you on your liberal butt. You have been blinded by the light of this true American-Conservative---
Posted by iluvuusa at January 19, 2006 09:33 PM