Judicial Activism and the Brown v. Plata Decision of May 23, 2011

by Diane Rufino, June 14, 2011


How do you know ‘judicial activism’ when you see it? Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

Beginning at the turn of the 20th century, activist judicial decisions initiated the start of a major transformation in American law. Prior to that time, there had certainly been many incidences of judicial overreaching, but these were generally rationalized as somehow representing the original intent of the drafters of the Constitution. But in the 20th century, and probably beginning most especially with Brown v. Board of Education (the school desegregation case), we had era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices wished to promote.

As we all know, there are two schools of thought with respect to the interpretation of our US Constitution. One school believes in the “original intent” of the document, as provided to us by our Founding Fathers, and therefore are referred to as “originalists.” In fact, our Founders provided clear instruction that the Constitution was to be construed strictly and in accordance to their intent. Others see the Constitution as a “living document” which is open to broad interpretation and are referred to as “liberals.” Under the “originalist” approach, the Constitution is viewed as a “static” document – one that doesn’t change meaning from era to era. What the document meant in 1787 is the same as what it means today. Judges are expected to stick to what the Founding Fathers intended. The Constitution’s principles are timeless, for as they are meant to address lessons that that hundreds/thousands of years of history have taught. “Originalists” see the Constitution in terms of black and white and its provisions are to be interpreted “literally.”

On the other hand, those who see the Constitution as a “living document” believe that judges can interpret it as they wish. They believe the Constitution is meant to ‘live’ and ‘breath.’ It is meant to evolve, as society evolves. In their opinion, it is essentially an outdated document that must be interpreted “liberally.” Liberal judges see the Constitution in shades of gray.

Conservatives are “originalists” because they want to ‘conserve’ our core values. Liberals or progressives take the “living document” approach because they can’t effect societal change unless they erase or erode old norms. They can’t make fundamental new law unless they destroy the old law.

Which is the correct approach? If you believe our Founding Fathers, then you would follow their advice and take the “originalist” approach and look at the Constitution as a static document with a clear definition and purpose. And why wouldn’t you believe our Founding Fathers? After all, they provided us all with the greatest grant of individual liberty with respect to government anywhere in the world. If you don’t value freedom and liberty and feel government knows best, than you might follow the “living document” approach and take your chances with whatever viewpoint the particular judge has at any given moment.

But you might want to reflect on this: The whole purpose of any constitution, and especially the Constitution of the United States, is to remove as best as possible and as much as possible the interpretation and application of the law from political controversy. With a constitution, the purpose is to set up basic principles that are going to apply and then the legislature and the courts are supposed to abide by them faithfully. The US Constitution has a method for dealing with political questions. It’s called the “Amendment process.” Article V. If it turns out that there are provisions of the Constitution that don’t adequately address issues and problems that we encounter today, then we go into that process. It requires a supermajority – 2/3 of both houses of Congress and then ratification by 3/4 of state legislatures. But that’s designed to make the process of changing the Constitution really responsive to the desires of the population. Changes to the Constitution should not be made lightly. We really want to know what the whole country in essence believes should be done and not just what a simple majority of one legislature should be done.

There are several examples of support for the “orginalist” approach to constitutional interpretation. First there is Contract law. The Constitution is essentially an agreement, signed by the States, on behalf of We the People. What it meant in 1787 is what it means today. Can you imagine a reasonable person entering into an agreement of significant consequence w/o knowing how that document/agreement will be changed or interpreted in the future? No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787. Second, there is the “Article V: Amendment Process.” The very fact that the Constitution has a provision for amending itself tells us that’s the way it’s supposed to be done. And third, there is the advice itself from our Founding Fathers. As Thomas Jefferson said: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.”

Judicial activism is what results from a “liberal” interpretation of the Constitution and our laws. Essentially, judges “make law” by injecting their personal views into legal interpretation and analysis. This is dangerous because under the separation of powers doctrine, a doctrine so vitally important in maintaining the integrity of our government, only the legislative branch is supposed to “make” laws. The landmark case, Marbury v. Madison (1803) stands for the rule that the judiciary is supposed to faithfully interpret the law and to declare any law which is repugnant to the Constitution null and void.

We saw judicial activism in Brown v. Board of Education, in 1953, when the Supreme Court identified a new standard for education – classes must be integrated. The “Separate but Equal” doctrine that the Court had previously held as sufficient under the Equal Protection Clause was thrown out for education because Chief Justice Earl Warren felt it didn’t sufficiently apply. He felt that segregation by race inferred a sense of inferiority on black students which would affect their education. The decision was more about social reform than it was about following the letter of the law.

A look at a few landmark (activist) cases might help show how activism has redefined our Constitution and reshaped our social landscape.
Brown v. Board of Education (1953):  http://forloveofgodandcountry.wordpress.com/

The American Conservative Union

CALL TO ACTION!

TAKE ACTION TO STOP OBAMA'S WORST JUDICIAL NOMINEE - GOODWIN LIU


On Tuesday night, Senate Majority Leader Harry Reid filed cloture to end debate on the nomination of Goodwin Liu to the federal appeals court for the 9th District based in California. The vote will be on Thursday and it will take 60 votes to bring Liu's nomination to a vote.

Of all the poorly qualified political activists President Obama has nominated to the federal bench, Liu is arguably the worst of the bunch. An Associate Dean at Berkeley School of Law, Liu does not even meet the standards set by the American Bar Association, having no trial experience. A hero to the left for opposing the nominations of John Roberts and Samuel Alito to the Supreme Court, Liu, if confirmed, would nevertheless be the odds-on favorite for the next Supreme Court vacancy.

CONTACT Sen. Richard M. Burr AND Sen. Kay Hagan AT (202) 224-3154 OR (202) 224-6342 NOW TO URGE A "NO" VOTE ON CLOTURE FOR THE GOODWIN LIU NOMINATION!

Liu has made it clear that he believes the constitution is merely a guide to judicial decisions. In his writings, Liu said he "envisions the judiciary as a culturally situated interpreter of social meaning." The key to judicial decisions, says Liu, should be "our collective values," "evolving norms," and "social understandings," rather than the Constitution as written or the laws passed by Congress.

How would this philosophy manifest itself? Well, for one thing, Liu has said there is a constitutional right to welfare, or as he put it, "negative rights against government oppression" and "positive rights to government assistance" should have "equal constitutional status."

TAKE ACTION NOW BY CONTACTING BOTH Sen. Richard M. Burr AND (202) 224-6342 AT (202) 224-3154 OR (202) 224-6342 TO OPPOSE CLOTURE ON THE GOODWIN LIU NOMINATION!

Liu's view on criminal law has resulted in the extraordinary opposition from 42 of 58 District Attorney's in California, where the 9th Circuit is based. Here's what they said about a Liu paper on criminal law:

"This document demonstrated beyond serious question that his (Liu's) views on criminal law, capital punishment and the role of the federal courts in second-guessing state decisions are fully aligned" with an appeals court that is "far outside of the judicial mainstream."

Other writing by Liu have supported reparations for slavery and racial quotas to remedy "societal discrimination," a position rejected by the Supreme Court.

Although Liu wants a pass for his past statements, he helped lead the fight against the Roberts and Alito Supreme Court nominations. Roberts, he said in an op-ed, had an "ideological agenda" hostile to the environmental workplace and consumer protections. Liu testified at Alito's confirmation hearing that the "America envisioned by his (Alito's) record is not the America we know, nor is it the America we aspire to be."

STOP THE LIU NOMINATION BY TAKING ACTION NOW. URGE Sen. Richard M. Burr AND Sen. Kay Hagan TO OPPOSE CLOTURE ON THE LIU NOMINATION BY CALLING (202) 224-3154 OR (202) 224-6342 NOW.

We at the American Conservative Union thank you for all you do to advance conservative principles.

Sincerely,

Al Cardenas, Chairman
American Conservative Union

Nullifying Tyranny

By George C. Leef

Campaign for Liberty, March 17, 2011

Nullification: How to Resist Federal Tyranny in the 21st Century


by Thomas E. Woods Jr. (Regnery, 2010); 309 pages.

One of the big mistakes made by the drafters of the Constitution was their omission of any provision that says what is to be done if the Congress or president acts unconstitutionally. Although the Constitution places limits on their authority, nowhere does it specify the course or courses of action open to citizens or states who want to block the offending action. That omission has plagued the nation almost since its beginning.

Americans are used to one course of action available to challenge the legitimacy of government action, namely review by the judiciary. There is no language in the Constitution stating that courts have the power to declare laws unconstitutional and therefore unenforceable, much less that judicial review is the remedy.

Why shouldn't state governments have at least as much authority to overturn unconstitutional acts as the courts? The states, after all, came together to form the compact called The United States of America. Moreover, state governments are more accountable to the people than are judges serving lifetime appointments on appellate courts. (Government accountability is a weak reed, but at least it is possible to vote out governors and state legislators.)

Does it make any sense to have one branch of the federal government be the sole judge of the legality of acts of the other branches of the federal government?

CONTINUED:  http://www.campaignforliberty.com/article.php?view=1371