A View Bearing on Judicial Activism in the U.S.

[JPaul]

That was precisely my point. It is the fundamental philosophy of the Constitution which is important to me. That philosophy needs no more modification over time than the teachings of Christ do.

Just like certain parts of the Bible are up for re-evaluation if a message is not clear, certain wordings in the Constitution are also under scrutiny.

You did read the bit where I said the original was tongue in cheek.

[clocker]

I would hope that a few of you could read this to see if you glean from it an understanding of what some feel ails and afflicts the Judiciary here in the United States, and render likewise a few relevant thoughts.

Mind, now: This is not to cause a row, but to provoke reasoned discourse.

Please and Thank you.

I tried.
I really did, pal.
I can't see how to conduct a "reasonable discourse" about such an unreasonable premise (although major props due to 3R1AN1AC and hobbes for beautifully written attempts...).

Many law professors, and others who hold contempt for our Constitution, preach that the Constitution is a living document. Saying that the Constitution is a living document is the same as saying we don't have a Constitution. For rules to mean anything, they must be fixed. How many people would like to play me poker and have the rules be "living"? Depending on "evolving standards," maybe my two pair could beat your flush.

Where to begin?
Every sentence in this excerpt is either inflammatory ("contempt for our Constitution"?Disagreeing with Williams=contempt, apparently), patronizing ("Saying that the Constitution is a living document is the same as saying we don't have a Constitution." Thanks, but I can decide what a "living document" is all by myself) or illogical (" For rules to mean anything, they must be fixed." What happens when the situation for the which the rules were originally designed
has radically altered or disappeared altogether? What "meaning" do the rules have then?).
If the makeup of the deck of cards Mr. Williams and I are playing with changes, then yes, my flush might lose to two pair.

I don't think that our "standards" have changed all that much, but the world to which we must apply them certainly has.
Mr. Williams premise would dictate that we "preserve" the Constitution beyond the point of relevance.

[lynx]

Seems to me that the judiciary are doing exactly what they are paid for.

If a legal document is unclear (and your Constitution, for all it's importance, is no more than that) someone has to make an interpretation, and the Judges are the ones appointed to do just that.

There are then 2 possible outcomes.

Either the judges have got it right (or near enough) in which case those who disagree can STFU. This seems to be the case here, but the author doesn't under the STFU clause.

Or they have got it wrong. If they are wrong, the parties involved (in this case your government) have to add a codicil to the original document (an amendment to your Constitution) to make sure that the desired interpretation is achieved.

The trouble with the latter is that it is then back in the hands of the politicians, and the risk is that the interpretation proposed by the ruling party is even less likely to achieve agreement than that put forward by the Judges.

[JPaul]

So you feel you should pay no never mind to international opinion.

The rest of the world (for which I speak) is singularly unshocked by this position.

[vidcc]

Small point, as an example of the author's intent:

The column quotes Justice Kennedy's belief that "...the overwhelming weight of International opinion..." is properly taken into account in the formation of the court's decision.

By what Constitutional fiat does he deign to do this?

The Constitution makes no appropriate allowance, and the international community (last I checked) has no entree.

If he believed as he did, he should be able to give forth with his opinion without using "International opinion" as a backstop.

Perhaps our Constitution should be reproduced here for communal reference?

I suspect at some point someone (so it may as well be me) will ask what part of the constitution allows for America to be "activist" in the "constitution" of other lands, especially by force.

[3RA1N1AC]

The Constitution makes no appropriate allowance, and the international community (last I checked) has no entree.

the U.S. Constitution has no prohibition against judges being familiar with international opinion or allowing it to influence their way of thinking, either.

going to the Constitution as a way to back up one's distaste for foreign opinion just doesn't work 'cause it makes no mention at all, good or bad, of foreign opinion. the U.S. Constitution itself was the PRODUCT of foreign opinion, and didn't just spring fully formed from the American imagination. the authors of the Constitution were well-versed in foreign ideas, opinions and laws, and were influenced by them... in contrast to our current president's attitude.

[JPaul]

Do you contend that the U.S. has at any time acted to rewrite/edit the constitutional documents of another country?

Not all countries have a written constitution.

Any action you (or anyone else) takes which changes the fundamental regimes / freedoms / rights of another country, or it's citizens is in effect changing their constitution.

I am not saying that is a bad thing, you can change things for the better (in your view, or the view of some of the citizens of the other country), however you are changing things.

We've been doing it for years, feck we even made them subject to our laws.

[vidcc]

J2

Notice the "" around constitution. Jpaul beat me to the reply. We go in an "fiddle" or completely change other nations. I only raised the point because of the "international opinion" should have no consideration part. But and I am not going to go off thread much, you mentioned Iraq. It was sold incorrectly as Iraq being a threat because of WMD...now it is "to bring democracy"...well we have no constitutional decree to do this in any land other than ours.
The authors point about international opinion was made as if the ruling was solely based on that, (a convenient cherry pick).... but it wasn't. The case was about what classes punishment as cruel or unusual so to look at other nations as an aid in deciding the level is quite acceptable.

But on subject of "activist judges" my very first post says it all really.

Recent event especially have highlighted an incredible hypocrisy from some prominent right wing public figures...the right wing "elite".

Those that wish to use the constitution as an article of convenience seem to be the ones that object the loudest when it comes to freedom, equality and protections for anyone who's lifestyle they disapprove of..... This is why we need unaccountable judges, so they can rule on issues correctly even if those issues are unpopular without fear of losing their jobs.

[Biggles]

Walter is a rascal is he not?

If the law was so watertight that ducks would give their approval, then a society would become hidebound and incapable of reacting to change within a generation.

The Constitution surely delinates certain freedoms and rights. However, from the moment its ink was drying it was breached by the continuation of slavery. Interpretation began from the first second.

The purpose of Judges is to make a decision - that is the power invested in them. However, to say they are Activist suggests that they are seeking to impose something unwanted. I would suggest Judges are Re-activists. Lawyers and individuals bring cases to the courts, not Judges. The Judges interpret the law based on the case in front of them and the merit of the legal arguments or (as is often the case) the demerits of the procedures of the police and the prosecuting office if it is a criminal case.

There does seem to be a perception that some Judges (all Judges?) are unduly whacky and liberal and will award the case to the nearest black lesbian whale, regardless of whether they in fact even brought the case before him. This would seem to be a tad alarmist. Most Judges are white, elerdly, upper middle class males with a strong conservative (small c) streak. They do, to a small degree, take predominate external value systems into account but take to a much larger degree legal precedent.

As I undertand it, the Supreme Court rules if any decision taken by a minor court has breached the freedoms enshrined by the Constitution. This is, I suspect, easier said than done and may give rise to the charge of activism whereas the situation is actually more one of a consevative dislike of upsetting legal applecarts that have already been neatly stacked by another court.

[JPaul]

Nicely said Les, tho' if one were to be ubber picky delineates may have been a better choice of words.

The other thing to bear in mind is that, as I understand it the constitution relates to everyone (including said slaves you refer to, good point btw). So in making decisions the Judges must ensure that in preserving one person (or groups) constitutional rights they are not denying the same rights to another.

I also agree with your point re who are likely to be Judges. However, for no particular reason I imagine that those in the USA are made up of a group a bit more widespread than our own. Our own being more likely to offend the liberal (small l ) element than to support them.