Off Topic Messages

Defining Judicial Activism in America

Fri Sep 16, 2005 7:58 pm

Last edited by EagleUSA on Tue Feb 02, 2016 4:52 pm, edited 1 time in total.

Sat Sep 17, 2005 12:26 am

I love how the libs say that Justice Thomas is the most activist because he has voted to strike down the most laws. They never investigate further to see whether or not the laws are really unconstitutional.
A law against flag burning was struck down with Scalia as a deciding vote(Texas vs. Johnson). The left don't claim that as judicial activism, because they agreed with the effects of the decision(allowing flag burning), not really caring about the deeper constitutional arguments.
Ironically that case was simply prosecuted wrong. The flag burner had stolen the flag he destroyed, yet was not prosecuted for that aspect of the crime...

Sat Sep 17, 2005 2:04 am

Too often "judicial activism" is a paraphrase for a decision that does not agree with my ideology.

However, I disagree with the contention that anything that is not explicitly written in the constitution is not intended. I think that completely negates the role of the judiciary which is not supposed to be subservient to the other two branches of government but a co-equal. The Founding Fathers wanted room for interpretation by implication. There is a lot left out. The First Amendment says "congress shall pass no law... abridging freedom of speech or the press." Yet what constitutes speech is never defined.

There is room for interpretation and courts since the beginning of the country have largely agreed with that.

For instance, we are often told the Constitution contains no right for privacy. That's true. There is nothing explicitly mentioning privacy. However, if you look at the first four amendments and the ninth amendment, all of these relate to privacy issues. I don't think it's judicial activism to assume that there is a right to a privacy when half of the Bill of Rights indicates that intent.

The issue is also confused because a lot of "so-called" judicial activism (I say so-called because I don't want to make a judgement advocating or dismissing any decisions) has been at the state level and those judges are reacting first to what's in the state constitutions which is often a very different gorilla.