Monday, April 18, 2005

Judicial Activism/Judicial Restraint

Between this post and the attached comments alone I have seen judicial activism defined in various shades from meaning when a judge actively strikes down a law because they believe it to be non constitutional across the spectrum to when a judge does not strike down a law which is blatantly non constitutional. In fact in the long essay by Sowell one will find, rather than a definition of judicial activism, an attempt to obscure the definition.

"Judicial activism" and "judicial restraint" raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?

One would think an essay posing such questions at the beginning might try to clarify. But instead Sowell seems to at turns support then decry each of the above points. Makes me wonder why the hell I wasted 20 minutes reading a meaningless essay that doesn't provide even Sowell's own opinion on what judicial activism means.

I do find it amusing that most of these "liberal" activist judges the right is whining about are in fact republican appointees. In fact 94 of the 162 federal judges are republican appointees. Now I'm not a lawyer (actually I'm a highschool drop out who works construction) but even I can see through this rhetoric to the core problem. It's not the "liberal" judicial activists that the right is worried about. It's the supposed shortage of "conservative" activist judges. But that doesn't really define the problem either. I know folks who would argue for example that denying homosexuals the right to get married is un-constitutional, yet the courts have always ruled against allowing same sex couples to be legally married.

The real problem lays in the fact that the right wants judges who will overturn more than 70 years of legislation. They want to be rid of minimum wages, environmental legislation, the 40 hour work week, social security, OSHA's workplace safety regulations and a host of other laws that most Americans take for granted and have no idea could possibly be in jeopardy. The same logic that calls for regress back to the '30s would also have to repeal child labor laws. I think most people would agree having orphans working in sweatshop firetraps instead of going to school is insane. Of course that same logic would pretty much need to abolish public schools so we might as well find something for the little tykes to do. I know it sounds so very Charles Dickens but hey, that's what we had before these laws were past.


beth said...

Do you have links to back up the claims in your last paragraph? I am one of those Americans who was not aware these laws were in jeopardy, and I'd like more info. Thanks!

DuWayne Brayton said...

I realy don't have time to dig up links right now (I will later) but Frist, DeLay and Conlyn are hitting hard to push through three judicial nominees who have repeatedly said they would like to see the New Deal overturned. Bush of course picked the nominees and has been trying to begin the phase out of social security. If the judiciary decides to overturn any of the New Deal (ie minimum wage, OSHA and environmental regulations) they would have to eliminate all of it including public education and child labor laws. If this happens the working class in this country would be working in conditions worse than those in Mexico or even China. And we would find ourselves in a neuvo Dickensian dystopia.

I'll have some links for you by tomorrow morning.

Beth said...

I thought the President's press conference tonight seemed contrary to what you are saying here, that he would want the judiciary to overturn the New Deal.