Deinonychus antirrhopus

"the "Constitution as a Living Document" view (does this view have a nice short handy name for it as with the Constructionist view?)."

That would be Mainstream Constitutional Jurisprudence.

Meanwhile, I doubt that anyone of influence is really a strict constructionist. Folks tend to argue strict construction only when it supports their position of the moment. That's how folks who are states' rights on abortion abandon states' rights on medical marijuana or same sex unions.

Even Justice Scalia, touted as a so-called strict constructionist, ignores the 10th Amendment and argues that only rights expressly guaranteed in the Constitution exist. This is a bizarre reading that would be confusing to the founders.

The phrase "legislating from the bench" is overused and misapplied when it refers to courts' checking executive and legislative overreaching. It is an apt expression in cases where the courts craft complex remedies such as busing or mandate particular spending levels.

Long, long ago, in a blog far, far away I had fascinating argument along these lines. It was, however, mostly based around altering the Constitution by judges, or by amendment.

My worthy opponent's view was that the amendment process in the Constitution was too cumbersome to be practical; and that as times change, the Constitution needs to change with it. He felt that the changes in society happened too fast for the amendment process. I have had other opponents in similar arguments that have noted that judges rely mostly on precedents, and so do not alter the status quo much. The net effect seems to be that they believe there is sufficient justification for change when judges make it.

My position is that the purpose of the Constitution is to limit the power of the Federal Government, and to do so it must remain fairly static. And I believe that we do not need judges appealing to public opinion, instead of us actually using public opinion in the form of an amendment. I also like to note that the Constitution was amended 4 times between 1960 and 1971. I maintain that if there is justification and support for an amendment, they can be done in good time.

I think that ultimately the difference in the two sides is how much they want to limit the power of government, and whether they view government as a benefit to society or a necessary evil.

What evidence can you provide that the anti-abortion side uses judicial activism to further its agenda.

I see judges blocking things like partial birth abortion bans passed by state legislatures (in Nebraska, for example). I see legislatures passing laws like parental consent, etc. And of course there is the federal Born Alive protection law (no shit, abortion docs in Illinois will deliver the "fetus" whole and let the baby die outside the womb, which is awful until you realize what the alternative abortion procedure is. It is grizzly stuff.)

Anyhow, I think the "everybody does it" defense is crap. Conservatives don't do judicial activism, homey.

Steve, there are Christian conservatives who do not share the creationism agenda. I believe its support base is small even within the conservative community.

Vache, your gay marriage example is a weak reed. The whole point of DOMA was to allow individual states to refuse to recognize gay marriages from other states -- an approach friendly to states' rights. The subsequent calls for a constitutional amendment defining marriage were based on the distinct possibility that DOMA would be declared unconstitional.

I think that most conservatives correctly see medical marijuana as a local battle, whatever rhetoric you may occasionally hear to the contrary.

From a juridical point of view, the 10th Amendment is highly problematic. If there are rights not enumerated in the Constitution, then where are they enumerated? If they are nowhere enumerated, then what becomes of the predictability of the law?

There may indeed be rights not enumerated in the Constitution, but it is up to the legislature and executive to enumerate or otherwise enforce them. The courts can only enforce rights that are enumerated.

One can argue that a court that strike down legislation on the basis of newly discovered "rights" is itself violating the right of a democratic electorate to decide how to govern themselves.

What about the legal fights of abortion. Couldn't these also be seen as forms of legislating from the bench?

How? The most that the pro-lifers want to do is have the Courts say that: the Constitution is silent on the subject, and hence the Court can't legislate on it, and that the legislatures, not the Court or courts, can legislate on them. They're asking for legislatures to not be overruled. You may view that as a mistake, but it's hardly legislating from the bench.

Now if the Court were to rule that under the 9th and 14th Amendments that fetuses were people with a right to life, then that would be legislating from the bench.

I'm a conservative Christian homeschooler who thinks evolution is good science and teaches good science to my kids. But among my many other objections to public schools I object to having other authority denigrated by gov't employees in the taxpayer's pay -- which is what happens when an school-teacher flatly declares to their students "Your parents are just wrong. Your pastor is wrong too. And anybody who says different from me is wrong." That departs from the realm of scientific theory into a political power struggle.

Conservatives don't do judicial activism?

Without the judicial activism of the 5-4 Bush v. Gore decision, this president would have likely finished his public career as a two term governor of Texas. (The 14th amendment argument of the Bush legal team had been dismissed out of hand by several federal courts considered to be conservative in their makeup, and the SCOTUS decision was written as a one-off decision, with no precedential value for future arguably similar situations.)

Well, of course, LIBERALS would claim that. (Doesn't make it untrue, btw.)

But Alberto Gonzales is not a liberal. He is Bush's long time Texas political associate, appointed by Bush to the Texas Supreme Court, formerly Bush's chief in-house lawyer as president, and now his Attorney-General.

Gonzales excoriated his fellow SCOT justice Priscilla Owens' positions in dissent as unconscionably activist, in his official writings of the majority opinion. Owens is one of the judicial nominees put up by Bush, blocked by Democratic party fillibuster threats, whose nomination Bush and the GOP intend to push through with their 'nuclear option.'

Actually, sofla, your claim is untrue. The only part of Bush v Gore that was 5-4 was the part that held it was too late to recount under a constitutional standard. The court found 7-2 that the Florida S.Ct. ruling was not correct.

Not that I'd expect you to know what you are talking about.

Wait...who decided to take it to the court instead of letting it go to the House of Reps like is mandated in that there Constitution? Hrm...You can call him Al.

"For example, the intelligent design/creationism legal battles are typically seen as part of the conservative agenda."

Well, the ID'ers are using school boards and legislatures to promote their agenda. IOWs, the elected branches of the government. While I disagree with their intent, at least they're using the correct branch of the government to advance it.

Sofla's unhinged ranting notwithstanding, I'm hard pressed to come up with a recent example of where the courts advanced a conservative issue in opposition to the will of the people / Congress.

Well, the ID'ers are using school boards and legislatures to promote their agenda.

Not always...I recall that in Michigan a lawsuit is shaping up and I want to say the IDers brought it. But then again, my memory might be faulty.

There's Oregon v. Gonzales about assisted suicide, the case started under the Ashcroft DOJ, I think it should be before SCOTUS this term.

I think that once apon a time, it made sense to accuse judges of legislating from the bench (LFTB). But the fight over whether or not the courts should only allow the government powers enumerated in the constitution is obviously way, way over. I wish it wasn't so, but it is. So I think those of us that would like to see judges that return to this line of thinking (Janice Brown type of judges) should just say that we would like to see those kind of judges, and not say that any other kind of judge is an "activist" or "LFTB" or should be impeached. Don't act like there is only one kind of judge that is qualified to be on the bench. Just simply say, " I would like to see this kind of judge. Thank you."

It is about results only. No matter how any side tries to spin it, that is all they care about. If they can get their result through the legislative process, great. If not, try the court. If you don't like the school board's policies, go to the state legislature. Politics attracts people who think government shold make a difference. The days of the local grandee elected by peers to go up to the state capital for a few weeks of legislating every two years are long gone. All of our politicians are full time and they like the perks of office, especially the opportunity to improve things. Conservatives want to improve our morals by regulating our sex ,and liberals want to use someone else's many to fund their favorite causes. The constitution was probably intended to curb the power of the federal government, but its proponents clearly wanted a strong federal government. There is no hope ever of getting judges or politicians who would consistently limit government's power.

"For example, the intelligent design/creationism legal battles are typically seen as part of the conservative agenda."

If the majority of people in a school district want to teach Christianity masquerading as pseudo-science, should it be allowed? Well no, once you understand that it's Christianity, but some people are unable to figure out the connection.

Of course, I've blogged about everything, and the general topic of liberals using the courts to achieve policy objectives is no exception.

On the other hand, I have some reservations about the previous comment. The First Amendment states that "Congress shall make no law..."

In fact, it was never intended to apply to the states, some of which had official state religions at the time the Constitution was ratified.

See Barron v. Baltimore (1833).

sofla,

You point me to the recount that had Gore winning and I'll point you to five that didn't. Best of luck with arguing that stupidity.

And what of the FL SC? They were certainly legislating from the bench. And saying otherwise proves your ignorance of FL law at the time of the 2000 election, btw.

So point me to specifics that support the FL SC's view written in the law in 2000 or suffer your defeat silently, slug.

About sofla:

As long as you people continue to feed the troll....

Timothy, the suit is styled Bush v. Gore. That means Bush was the one initiating this lawsuit, not in a Florida court, as Florida election law provides for, but in federal court.

Gore's resort to the courts was in Florida, in Florida courts, as provided for in Florida election law, in which it is anticipated and has sometimes been the case that election results go to the courts. In fact, the courts are empowered by Florida law to provide 'ANY' equitable relief, and historically, that equitable relief has included mandating the election results be set aside entirely, and a new election held. (For one example, the late '90s election for mayor of Miami was found to be riddled with absentee election fraud, and the court mandated just such a set aside and re-election in that case.)

Robin, Supreme Court decisions don't come with sub-issue vote scoring (even if that can be divined from the individual opinions written). Many conservative legal commentators wrote that, to their chagrin, they considered granting the temporary restraining order and taking the case in the first place an act of judicial activism.

Logically, if the disparate methods of counting in the SCOFLA-mandated recount raised a colorable 14th amendment claim, so did the election itself, not only in Florida, but in any state in which localities were granted decisions on what standards votes are counted or not. As Florida law did not provide a uniform standard, how could the courts lawfully prescribe one, except by their plenary powers to provide 'any' equitable relief? And, by the time we're down to this carte blanche granted by Florida law to the courts, then their original mandated recount was within the law as well, using this identical power given the court.

In any case, none of that addresses the certainty that Alberto Gonzales is a close political associate of Bush's, and that he described Priscilla Owen (sorry to add an 's' to her last name above in error), a judge whom Bush is now nominating (again) to the bench, as an 'unconscionable' (his exact word) judicial activist.

So we now know that Bush has no trouble with judicial activists (of the right persuasion), OR he disbelieves his own appointee to head the White House Counsel's Office, and now, the man who is his Attorney-General.

Sofla, I hate to be redundant but you do not know what you are talking about.

"That means Bush was the one initiating this lawsuit, not in a Florida court, as Florida election law provides for, but in federal court."

False. Your bloviating is once again sans facts. It was an appeal from a Florida state Supreme Court decision. The order of the names in a Supreme Court case tells us who the appellant is, not who initiated the lawsuit. Al Gore did in fact initiate the state case to demand a recountj. It was appropriate for him to do so and required for him to do so procedurally.

Secondly, there can be "sub issue" voting in effect, by reading the dissents and concurrences. Which I have done and you obviously have not. It is done all the time in analysis of Supreme Court opinions to understand the individual issues. And its done all the time in teaching Con Law, which I get paid to do and you do not.

Your claim is factually false - as usual - and your ignorance is overflowing - again as usual.

As for your comments on the substantive issues of Bush v. Gore, you are - again as usual - completely incoherent. This was a federal election, of course there was subject matter jurisdiction.

I see no one will comment on the strong effort to seat Priscilla Owen on the federal bench, despite wholly convincing 'against interest' evidence from no less than Alberto Gonzales that she is, quote, an 'unconscionable,' unquote, judicial activist. The silence on that score is deafening, but understandable. It is prima facie proof that CONSERVATIVE judicial activists are fine with this current crowd in government. It isn't the activism, it's the purpose to which it's used, evidently, that is the issue.

The point of answering Timothy was his claim that Gore could have allowed the matter to be handled in the House of Representatives, as was the Constitutional process, rather than resorting to the courts. This is quite mistaken, as the House would only be involved if the Electoral College were presented with two competing slates of electors. There could only be two legitimate competing slates of electors if suits for recounts, or perhaps later, an election contest suit, resulted in a second and different result from the slate already certified. (That is, the later involvement of this Constitutional method of resolution DEPENDS upon the earlier resort to the courts and the recount/election contest lawsuits.)

Then, of course, it would not be the House alone deciding, but the Senate as well, with one count per state in each body, iirc. The scenario envisioned had that taken place was that the House, with a reliable GOP majority, would vote to credential the Bush electoral slate, and that the Senate, in a tie position, with the still-VP Gore voting with the Democrat half, would vote to credential the Gore slate of electors.

THEN, the decision, at that point a tie, would devolve back to... wait for it... the governor of the state in question, the brother of the GOP candidate.

Robin, many professors of Constitutional law disagree with you, including the 130 some who jointly signed a public letter condemning the overt judicial activism they saw in the decision.

A lot, possibly a majority, of expert commentators predicted the high court would not take the case in the first place, since it lacked, as they saw it, any judiciable federal issue. In fact, Bush had been in federal court twice before with these arguments in conservative district courts, and had been turned down cold.

Later, eminent conservative Constitutional law scholars writing in DEFENSE of the court's action declined to defend its reasoning on the 14th amendment claims, stating they found it a non-starter, and incoherent on its face.

The case for granting the restraining order was still more strained, as it required the court to find Bush was very likely to prevail on the merits, and to balance the relative harm to the parties. The purported harm to Bush was a possible tainting of the legitimacy of his election, whereas the likely harm to Gore was to end any possibility of his being elected at all.

Sofla,
It would be amusing how you abandon your own points, and create strawmen to assign to me for your arguments. It would be amusing if the fact that you don't know what you are talking about hadn't gotten tiresome long ago.

It is ludicrous to attack the USSCt. in Bush v. Gore as "judicial activism" when the earlier SCOFLA opinions had already wiped away the Florida statutory scheme for recounting that was so inconvenient for Al Gore.

I have no idea who you mean by "eminent conservative Constitutional Law scholars" defending the decision, but if you think you are refering to Judge Richard Posner's book on the 200 election "Breaking the Deadlock", first,it is incorrect to call him "conservative". Well, except when one is using the definition of everyone to the right of Lawrence Tribe as "conservative", just the kind of sloppy rhetoric we get from you.

But anyone who has read Judge Posner's decisions knows that he isn't the kind of conservative you imply. ( Of course, "imply" has the implication in it of a volitional act on your part - an assumption I should not make. Your postings demonstrate more of a drunken sailor's walk among the issues. )

Secondly, you obviously don't understand Judge Posner's argument at all.

And anyone arguing that a federal election dispute doesn't present a justiciable federal issue ( and thereby also confusing the question of original jurisdiction and appellate jurisdiction as well ) is not an expert but a flaming moron.

Now lets watch you adopt yet a fourth or even fifth argument from scratch to confuse yourself.