The Courts, the Constitution and the Federalist papers

I am so thankful to the framers of our government who built into the fundamental law (the Constitution) a system of checks and balances to secure the people's inalienable rights and to protect us from oppression and tyranny.

I look back over the last hundred years, and I cringe to think about how our lives in this country would be different if many of the repressive, tyrannical laws that the states have made to "govern the people" had been allowed to stand. If the Supreme Court did not do its job as envisioned by our framers -- if the Supreme Court had shirked it duty as the guardian of the fundamental law -- then the freedoms and liberties that we enjoy today would not exist.

Do we really want to turn back the hands of time and erase all the lines that the Supreme Court has declared that the government may not cross when making laws that regulate our personal and private lives?

Go back to Brown v. Board of Education, Loving v. Virginia, and Griswold v. Connecticut, for examples.

We cannot deny that the States have passed and enforced oppressive laws. If the Supreme Court had not reigned in the power of the States to make and enforce oppressive laws and the States were not limited by U.S. Constitition nor the Supreme Court -- how far would the States have intruded into our bedrooms, into our homes, into our families, into our intimate relationships, and into the most intimate aspects of our bodies and our daily lives?

If the Supreme Court did not exist to draw lines based on fundamental law and declare, "STATES: here is the line and you may not go past this line," where would we be today?

We all know the constitution protects the blessings of liberty; but how do we define "liberty." According to the strict constructionists, the government can do anything it wants to do so long as it is not explicitly prohibited by the Constitution. In other instances, the strict constructionists will argue that if the people argue that the government is infringing upon a right of privacy, they will say -- where in the constitution does it say you have the right to privacy? You have no right to privacy and the government may intrude into your privacy whenever it wants to and tell you what you may or may not do in your private life.

After all, the Constitution doesn't explicitly say that black people have the right to use the same public accomodations or schools that white people use. The Constitution doesn't say that white people and black people can marry each other. The Constitution doesn't say that any person has the right to marry or have children. The Constitution doesn't say that you may work in the occupation of your choice. The Constitution doesn't say that you have the right to use contraceptives.

Accordingly, if the States pass laws requiring the races to be segregated, there is nothing in the Constitution to prevent the States from doing so. If the States pass a law that prevents you from marrying the person of your choice, the States may do so -- the States may ban marriage altogether. If the States pass laws criminalizing premarital sex, the States may do so. If the States pass laws prohibiting single persons from having children, the State may do so. If the States pass laws limiting the number of children that a married couple may have, the States may do so. There is no constitutional right to privacy in marital relations or anything else. If the States pass laws that require the forced sterilization upon mentally incompetent persons, poor people, criminals, or others -- the states may do so. After all, the State has an interest in preventing these people from reproducing -- especially poor people because the State doesn't want to support indigent children. If the State bans contraception, the state may do so. YOU, the individual, have no rights to prevent the State from enforcing these laws upon you because the Constitution doesn't say you have any such rights.



Just look at Griswold v. Connecticut. http://laws.findlaw.com/us/381/479.html

The State of Connecticut enacted a statute that made it a crime for any person to use any drug or article to prevent conception. A planned parenthood organization and a licensed physician were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use.

Does the state really have any interest in preventing married persons from simply learning about birth control methods? Does the state really have any interest in preventing married persons from using contraceptives? But then again, where in the Constitution does it say that married persons have a right to obtain information concerning birth control or use contraception?

WHERE IN THE HECK do we draw lines with respect to what the State may or may not regulate under the penalties of law? If the Supreme Court did not interpret the concept of LIBERTY to have SUBSTANCE -- to have meaning and to protect us from governmental intrusions into our private lives -- we would all be at the mercy of the State in every aspect of our personal lives.

How many people in this country actually want the government to have unlimited power over every detail of our intimate and private lives? Where would we be today if the Supreme Court had neglected its duty to interpret the constitution and draw lines over which the States may not cross?

I am very thankful that the Supreme Court fullfills its duty in our system of checks and balances and stands as a guardian of fundamental law.

Fox writes:


This is a little vague from an objective standpoint.

What law exists from this ruling? Where can I find this law?

What standard tells us there is no constitutional basis for the ruling?

Why is this ruling different from every other ruling by the USSC about the constitution?

What is the stretch? What objective standard makes it a stretch?

The Supreme Court based its decision in Roper v. Simmons upon the Eighth Amendment prohibition against cruel and unusual punishments.

As Parados has pointed out, the Constitution is the will of the people. It is the will of the people that cruel and unusual punishments be prohibited. It is the duty of the Court to interpret the meaning of "cruel and unusual punishments" as applied to the facts of the actual cases or controversies presented to the Court.

Throughout this country, the people have come to a national consensus that it is cruel and unusual punishment to apply the death penalty to juvenile offenders. Only 19 states out of 50 states and the District of Columbia allowed juvenile offenders to be eligible for the death penalty. Out of those 19 states, however, only 12 states actually applied the law. And, out of those 12 states, the death penalty as applied to juveniles was used only rarely. Texas applied the death penalty to juveniles the most times (and Texas uses the death penalty extensively). Texas applied the death penalty to juveniles 29 times since 1976.

It is apparent that the application of the death penalty to juvenile offenders is repugnant to the people. It is cruel and unusual punishment when one considers the tender age of the offender and his lack of maturity when he committed the crime. Why should the Supreme Court allow cruel and unusual punishments to be inflicted in 12 states in the union? The juvenile offenders in those states are entitled to the constitutional safeguard against cruel and unusual punishment. They are entitled to petition the Supeme Court (see First Amendment) and ask that the Supreme Court set aside the death penalty as cruel and unusual punishment prohibited by the Eighth Amendment.

The Supreme Court has jurisdiction to hear the case. It is an actual case and controversy arising under Constitution. The Court ruled in favor of the petitioners and declared State laws that subjected juvenile offenders to the death penalty were unconstitutional. The Court performed the duties entrusted to the Court by our framers to safeguard the constitution.

The only way the people can change the ruling of the Court is to amend the Constitution. If it is the will of the people that "cruel and unusual punishment" does NOT include punishing juvenile offenders with the death penalty, then the people must amend the constitution to make this clear.

See Constitution, Article V:



It is highly unlikely (given the national consensus against the execution of juvenile offenders) that three fourths of the States would agree that the constitution should be amended to allow the execution of juvenile offenders.




I agree with Parados concerning the above.

parados writes


I would think you would have to look at every case individually for the answers to your questions as my definition referenced no specific case at all. Vague? That's the whole problem as I see it. The criteria being used for what I define as judicial activism is all very vague when you attempt to apply strict constitutional law or even the arguments found in the Federalist papers.

To return to one of many examples that could be used--I'm reading every word, Debra --, in those few states with laws on the book allowing trying minors as adults including application of adult penalties, there was equal protection under the law as all citizens were subject equally to the laws that existed. But now, right or wrong, the states have had that prerogative taken away from them. The four justices who voted in favor of the states almost certainly had personal convictions against executing minors, but they, in my opinion, rightfully saw the matter as not correct for judicial activism. The elected officials of the people cannot do anything about it.

As one by one, the local values of the people are being taken over by court rulings, and the only remedy is via the costly, lengthly, tedious, unpleasant, and treacherous process of amending the Constitution. In my opinion, the Court is assuming much more power than was ever intended for it to possess.

Debra writes


And yet a fairly objective look at the laws that have overturned the more oppressive laws - equal rights respective to race, religion, gender, etc. - have come from the grass roots via the legislature as the system was intended to work. And now you have the presidential veto or consent and the courts as necessary to provide the checks and balances. When the legislation starts and ends with the courts, the people are shut out of the process entirely and there is no recourse other than via amendment to the constitution as previously described. That is why I think we need to be very sure that the men and women are on the court who are committed not to usurp the intent of the Constitution and the courts in that way.

But anyway, I can see that my remarks are more irritant than helpful and I am out of step with everybody else. And though I have been not in the least convinced that I am wrong about this, the rest of you may prefer a more scholarly approach. I'll pull in my horns for awhile and just watch.

Fox wrote:



The idea behind an "objective standard" is that it is completely divorced from an individual situation and can be applied to all. If you can only apply it based on the situation then it isn't objective but is subjective.

Fox, I am trying to understand how you come to your conclusion of "judicial activism." Am I wrong in thinking that it is whatever you feel violates the constitution as you interpret it?


That statement appears to violate the constitution completely. The constitution has supreme power over local rules and laws. Those local laws can't violate the constitution.

The reason amending the constitution is work is to prevent knee jerk amendments passed without proper thought. A very wise thing for the founders to do. If the matter is that important than it should be worth the time to do it.


The constitution doesn't guarantee equal protection in each state individually. It guarantees it to ALL citizens of all states. It isn't just Ohio has to have equal protection but Texas can have different protection. If it is a Federal issue then it applies to every state equally. When Texas has a law against sodomy and the Fed courts declare that a similar law in Georgia violated the constitution that mean that the citizens in Texas were guaranteed the same rights as the ones in Georgia. The Texas law would also be unconstitutional.

Fox writes:

Fox, just because you feel you are an irritant doesn't mean you aren't being helpful. I am trying to get you to clarify your position but it also helps me to clarify mine.

When it comes to horns, I am trying to keep my horns pulled in.
I'll admit I have to stop, reread some of my posts and then rewrite them before posting but that comes from the heat of the battle. My pointed questions are meant to make you think and explain to me your position because I don't quite understand it. It doesn't necessarily mean your position is wrong or even that mine is right. (Ok, I am arrogant enough to think I am right as my wife will be happy to tell you. But then she loves to point out when I am wrong.)

Hear hear. I'm sort of hanging around on the sidelines and dashing in when i see an opening (ie where there might be something I have knowledge about) and then back to the sidelines. But reading and joining in and reading again means I'm learning. My frame of reference is my own knowledge of the legal system in Australia (I'm not a lawyer or a law student) so I'm using that to help me follow the discussions. I'm learning a great deal. It's more effective than reading a textbook.

As I understand it, the contention of the decision's opponents was that a) by treating the expression "cruel and unusual punishment" as a reference to a value judgment that might change, the Supreme Court makes it impossible for the people to tell what the law is, and grants itself more leeway than 9 unelected, unaccountable people should have in a democracy. As an alternative, they propose that constitutional provisions mean whatever they meant that they were ratified. Under this rule "cruel and unusual punishment" means "punishment that courts considered cruel and unusual in 1791". They place the burden of amending the constitution on those who want to change the meaning of "cruel and unusual". Makes sense to me.

b) The opponents of the decision (minority opinion in Roper v. Simmons) claim that the Supreme Courts standard to prove that a punishment is cruel and unusual is low, and getting lower, and that this also widens the Supreme Court's discretion to a degree that's problematic. I don't know enough about America's legal history to know if the premise is true, but given the premise, the conclusion makes sense to me.

Thomas wrote:

I have a couple of problems with this argument. First it ignores what I think we have come to some form of agreement on here, that courts are the constitutional arbitrar of what the constitution means. This becomes a logical catch 22 if courts can't decide on the constitution's meaning when the constitution clearly says that courts can.

My second objection is then it would mean all words in the constitution must be interpreted as to what they meant in 1791. This would mean "arms" would be restriced to muzzle loading weapons. "Press" would be restricted to something hand printed with movable type. The "United States" would be restricted to the 13 original states. The arguments are endless if we restrict it to 1791 meanings and would make the constitution meaningless in today's society. I personally don't want to bring back public hangings where someone takes 15 minutes to strangle with a noose around his neck.

This argument has some sound reasoning behind it. We don't want the court to decide everything or it destroys our form of government. But the argument seems to be a "slippery slope" one. If we allow the courts to decide this case then they can decide anything. I hardly think that deciding that children can't be put to death is a low standard for "cruel and unusual" especially in light of the data on brain development. We have long held that a person must be aware of their crime and the consequences. This is hardly a radical standard to say that someone with an undeveloped brain can't face the same consequences as someone that is fully developed.

I think there certainly can be reasonable disagreement on whether children less than 18 can be tried as adults and put to death if convicted. But as Deb has pointed out with her statistics on allowing children to be put to death it is not the prevailing belief. If the standard is "cruel and unusual" then shouldn't we look at what is the prevailing belief in whether it is "cruel or unusual"? Science and technology have given us new understanding. Should we just ignore that and stick to the 1791 viewpoint when it comes to the constitution? Should our legal punishments be exactly as they were in 1791?

Side note - Interesting article today about lethal injections and if they are really as painless as we believe they are. I don't think this would be a reason to stop death penalty but I don't think we should ignore it if true. Perhaps we need to adjust how we do it in light of this.
http://www.msnbc.msn.com/id/7501628/

parados,
Would it be relevant to explore overlap among the three branches of government? I still feel that some lawmaking power is legitimate for the judiciary. "Separation of Powers" is a highly valued principle. However, in practice, there is some overlapping of governmental functions among the three branches.

Is this the organization that shape's Foxfyre's thinking?
Is this the organization that shape's Foxfyre's thinking?---BBB

Solving the Judicial Nomination Crisis
The Family Research Council
by: Mr. Brian Newell

Summary:

Activist judges are overstepping their authority more and more, legislating from the bench rather than interpreting our laws with Constitutional guidance.

Meanwhile, qualified judges are being prevented from getting an up-or-down vote in the United States Senate.

The Crisis of Judicial Activism
Talking Point: The battle is for the rule of law.

· Activist judges are overstepping their authority more and more often, legislating from the bench rather than interpreting our laws with constitutional guidance.

· The foundation of our democracy, "a government of the people, by the people, and for the people," is thwarted.

· An elite class, unaccountable to the American people, defines our values and shapes our culture.

· We are becoming a government of "cultural elites" over the rule of law.

Talking Point: It is the law that judges, not the judge.

· Courts increasingly invoke the "reason" of foreign courts to arrive at the conclusion the judge seeks to promote. We have seen this in the Supreme Court cases Atkins v. Virginia (2002), Lawrence v. Texas (2003), Goodridge v. Massachusetts (2003), and most recently, Roper v. Simmons (2005).

· Supreme Court Justice Antonin Scalia reveals the growing trend, stating that the Court tends "(t)o invoke alien law when it agrees with one's own thinking, and ignore it otherwise, (and that) is not reasoned decision making, but sophistry." (Scalia, J. dissenting opinion in Roper v. Simmons)

· In the landmark case Lawrence v. Texas, the Court declared that a popularly held moral disapproval of a certain action was insufficient grounds for government prohibition of the action.

The Crisis of Judicial Obstruction
Talking Point: Each judicial nominee deserves fair and respectful treatment, with a chance to receive an up-or-down vote in the Senate.

· Before 2003, no judicial nomination with clear majority support was ever defeated by a filibuster.

· During the 108th Congress (2003-2004), the Senate voted on 20 motions to end debate, or invoke cloture, on 10 different judicial nominees. The average vote to end debate was 53-43--enough support to confirm each nominee but less than the 60 votes required to end debate.

· While Democrats claim they have confirmed more than 200 of President Bush's judicial nominees, 10 nominees to the Circuit Court of Appeals (in most instances, the final review in our legal system) were filibustered.

· Democrats have employed ruthless tactics (even invoking race and, by implication, religion as factors in their opposition) in an attempt to discredit President Bush's nominees--even nominees who have received a "well qualified" rating from the American Bar Association, a rating Democrats have used as the hallmark for judicial appointments.

· A Senate memo made public in the Wall Street Journal described a meeting with Sen. Edward Kennedy (D-MA) and liberal advocacy groups at which appellate court nominee Miguel Estrada's Latino background and his prospects for eventual appointment to the Supreme Court were cited as grounds for their opposition (courtesy of www.confirmthem.com).

· The Constitution is clear regarding the nomination and confirmation process: "[The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court and all other Officers of the United States..." U.S. Constitution, Article II, Sect. 2.

· The Constitution clearly specifies when more than a simple majority vote is required for special business (treaties, veto override, etc.). The Constitution does not require a super-majority vote for the confirmation of a judicial nominee; therefore, Senate Democrats are acting unconstitutionally.

· Democrats have never questioned the legitimacy of Clinton-appointed judicial nominees confirmed with less than a 60-vote support (for example, Judge Richard Paez, with 59-vote support; Judge William Fletcher, with 57-vote support; and Judge Susan Mollway, with 56-vote support).

· Until Miguel Estrada withdrew his nomination, every circuit court nominee subjected to a cloture vote ultimately received an up-or-down vote in the Senate; all gained confirmation.

· Democrats claim that 63 of President Clinton's nominees were delayed in the Judiciary Committee. However, the reality of last-minute nominations is that they usually do not receive confirmation. Former President George H. W. Bush left office with 54 judicial nominees expiring in a Democratic-controlled Senate.

Talking Point: Currently, there are 20 "judicial emergencies," as classified by the non-partisan Judicial Conference. With a growing docket and pending vacancies, our judicial system has become logjammed, negatively impacting our economy, social justice, and democracy.

· As Sen. Pat Roberts (R-KS) stated, "Taxpayers spend $5.1 billion for the federal judiciary every year. The American people are paying for fully staffed courts and are getting obstructionism and vacant benches."

Talking Point: We have to be willing to do what it takes to break the logjam.

A Constitutional Solution for a Constitutional Crisis
· Until the filibuster is broken, "strict constructionists" will continue to be denied an up-or-down vote in the Senate.

· There will likely be at least one Supreme Court vacancy this year.

Talking Point: The survival of justice demands decisive action.

· While other options to end filibustering on judicial nominees have been considered, the last option at this point is the "constitutional option," often referred to by liberals as the "nuclear option."

Talking Point: The word "nuclear" better describes the polarization and distortion of the judicial confirmation process that occurred from 2001 to 2004, when an unprecedented rain of filibusters began.

· The "constitutional" option is fittingly named because it invokes the Senate's constitutional duty of "Advice and Consent;" it is called "nuclear" because Democrats have sworn to "shut down" all legislative business within the Senate (with 41 votes they can stop any bill) if it is used to require up-or-down votes.

· The Procedure: A judicial nominee is brought before the Senate and "unanimous consent" is requested for a vote on the nominee, upon which a senator will offer an objection. A "point of order" is then requested by a Republican, who asks for a "ruling by the Chair" whether a filibuster is constitutionally permissible for judicial nominations. When the presiding Chair, Vice President Dick Cheney, declares the filibuster unconstitutional, Democrats will appeal the Chair's decision; a motion to "table" the appeal with be brought to order, requiring 51 votes to sustain the "tabling" motion and, in essence, the Chair's decision.

· The U.S. Senate is constitutionally vested with the authority to determine its own rules of procedures, thereby providing a constitutional remedy to a constitutional crisis.

· 51 votes is all that has ever been required for judicial confirmations. The 51-vote rule is consistent with Senate tradition and restores those traditions through traditional methods, methods once endorsed by such leading Democrats as Senators Edward Kennedy (D-MA), Charles Schumer (D-NY), and Robert Byrd (D-WV).

· Talking Point: If the Senate cannot break the unconstitutional filibustering of liberal senators, then the Senate will be unable to confirm federal judges, including Supreme Court justices whose judicial philosophy seeks to uphold the rule of law.

Senators' Public Positions on Judges
Talking Point: We've had three years of threats now to invoke the constitutional option, and nothing's been done. Either stop talking about it or do it. Words mean little. Action is what will be judged.

Talking Point: People will be paying attention to the likely battle over a Supreme Court nominee and they will think it unfair to deny the nominee an up-or-down vote.

· Every senator has an opinion on the constitutional option (these are from dated news accounts, so information may have changed):

· Sen. Olympia J. Snowe (R-ME) told the Portland Press Herald, "I just don't see how it's going to benefit us, even in the majority, to change it to a simple majority [vote] because ultimately it could create more wedges and political wounds."

· Sen. Susan Collins (R-ME) "doesn't think the nuclear option is a great idea," her spokeswoman, Jen Burita, said.

· Sen. Lincoln D. Chafee (R-RI) has said "I'm not in favor" of the option.

· Sen. John McCain (R-AZ) told CQ Today he would not support the option because "the Senate should not be like the House."

· Sen. John W. Warner (R-VA) said in a statement: "I have not reached a firm view on the matter. However, I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations." He said, "I remain to be persuaded that the seriousness of the problem merits such an extraordinary solution," but "the Senate may be forced to take some action to preserve the president's constitutional obligation to fill [court] vacancies."

· Sen. Chuck Hagel (R-NE) has questioned the wisdom of eliminating the minority's right to filibuster, citing times when Democrats ruled the Senate.

· Thad Cochran (R-MS), Ted Stevens (R-AK), and John E. Sununu (R-NH) have declined to take public stands on the issue.

· Sen. Ben Nelson (D-NE) did not support last year's filibusters of appellate judge nominees, his spokesman, David DiMartino, said, "but when it comes to a Supreme Court nominee, he reserves the option to do so based on the nature of the nominee."

· Other key senators who may determine the outcome of the judicial filibuster crisis are: Sen. Lisa Murkowski (R-AK), Sen. Richard Lugar (R-IN), Sen. Charles Grassley (R-IA), Sen. Pat Roberts (R-KS), Sen. Pete Domenici (R-NM), Sen. Mike DeWine (R-OH), Sen. George Voinovich (R-OH), Sen. Gordon Smith (R-OR), and Sen. Arlen Specter (R-PA).

Never heard of it BBB

More from the National Research Council
More from The National Research Council---BBB

Questions and Answers: Why Should I Care About Judges and Judicial Nominations?

National Research Council
by: Mr. Peter Sprigg

Summary:

Many of the negative changes in American society over recent decades have been imposed by unelected, activist judges. This paper examines how that has happened and why the fight over judicial nominations in the Senate is so important.

Q - Why should pro-family citizens care about the appointment of judges?

A - Many of the negative changes in American society over recent decades have been imposed by judges. The removal of prayer from public schools, the creation of a nationwide "right" to abortion, and the legalization of same-sex "marriage" in Massachusetts were all decisions imposed by activist judges, without considering the will of the people and their elected representatives.

Q - What do you mean by "activist" judges?

A - "Activist" judges are judges who impose their own policy preferences in their decisions. Judges are only supposed to interpret the law, not rewrite it. Legislatures, elected by the people, write laws, and the executive branch of government (headed by an elected official) is responsible for enforcing them. Activist judges effectively take away your right to affect policy by your vote.

Q - How have activist judges abused their power?

A - Judges are abusing their power if they read into the Constitution principles that are not declared by the plain language of the Constitution. For example, the First Amendment says, "Congress shall make no law respecting an establishment of religion." But nowhere does it say that there should be a strict "separation of church and state" at all levels of government, barring any acknowledgment of God. The decision legalizing abortion was based on the "right to privacy"--but no such right is declared in the Constitution.

Q - Are there other concerns about how activist judges make decisions?

A - Yes. In several recent prominent court cases, judges supported their decisions by making reference to foreign laws, court decisions, and international agreements not ratified by the United States. Foreign law should play no part in American court decisions.

Q - How does someone become a judge?

A - Different states have different procedures for selecting judges. Some are appointed and some are elected. But all federal judges (in district courts, circuit courts of appeals, and the U.S. Supreme Court) are appointed by the president with the "advice and consent" of the Senate.

Q - If Republicans control 55 seats in the Senate, then what's the problem?

A - The problem is that a minority of senators, who support liberal judicial activism, are trying to prevent some of President Bush's nominees from even receiving a vote on the floor of the Senate.

Q - How can they do that?

A - Unlike the U.S. House of Representatives, where the length of debates is limited, the Senate has a tradition of "unlimited debate." In practice, that means that a minority of senators can prevent an issue from even coming to a final vote by insisting on continuing to debate it for an indefinite period of time. This process is known as a "filibuster."

Q - Is there any way to overcome a filibuster?

A - Yes. The Senate can take what is called a "cloture" vote to close debate. However, a cloture motion requires 60 votes (three-fifths of the Senate) to pass, instead of a simple majority of 51. If a judicial nomination can be filibustered, that would mean that a minority of senators (as few as 41 out of 100) could block the appointment of a nominee who has the support of as many as 59 senators.

Q - Have judicial nominations been filibustered before?

A - Filibusters are normally used only to block pieces of legislation. There is no precedent in American history for a judicial nominee who had the clear support of a majority of senators to be blocked from even receiving a vote, by a minority of senators, through the filibuster. And many judges have been confirmed even though more than 40 senators opposed them. (Democrats argue that President Lyndon Johnson's nomination of Associate Justice Abe Fortas to be chief justice of the U.S. Supreme Court in 1968 was filibustered by Republicans in the Senate. However, Fortas was already a member of the Court, and it is not at all clear that he would have won confirmation if there had been a vote. His nomination was ultimately withdrawn by President Johnson.)

Q - Is it constitutional to require a super-majority of 60 votes in the Senate to approve a judicial nominee?

A - We believe it is not. The Constitution requires a two-thirds vote to do certain specific things, such as ratifying treaties, expelling a member, or convicting an official in an impeachment trial. It says nothing about requiring more than a simple majority to approve a judicial nomination.

Q - If senators can filibuster a bill, don't they have just as much right to filibuster a nomination?

A - No. Writing legislation is the Senate's primary function, and it is therefore appropriate for it to have more discretion in setting the rules when it is carrying out that function. However, appointing judges is primarily a function of the president, in which the Senate plays only a secondary role. Moreover, legislation is subject to amendments, and the filibuster adds a minority lever by which consensus-building amendments can be added to pending bills. A nomination, in contrast, is a basic yes-or-no proposition.

If the liberal minority in the U.S. Senate were as passionate about legislative privileges as it claims, it would object to judicial activism itself, which has done more than anything else to weaken the legislative role. The filibuster is most illegitimate when it is used to protect the seizure of power by the unelected branch of government, the judiciary. Therefore, the Senate should not add any additional barriers to the confirmation of a judge (such as requiring a 60-vote super-majority) beyond what is spelled out in the Constitution.

Q - If the Democrats do decide to filibuster President Bush's judicial nominees, is there anything that can be done about it?

A - Yes. The presiding officer of the Senate (which is Vice President Dick Cheney, when he is present) could rule that filibusters of judicial nominations are not permitted. Such a ruling could then be upheld by a simple majority vote. This "constitutional option" preserves the constitutional right of the president to appoint judges with the advice and consent of the Senate--without adding additional, unconstitutional conditions.

Q - If the constitutional option to end filibusters of judicial nominations only requires a majority vote of 51 senators, and the Republicans hold 55 seats, why haven't they already used it?

A - Some Republican senators are reportedly reluctant to take firm action against the filibuster. Some are hesitant to change longstanding rules and traditions of the Senate--even though, in fact, it is the Democrats who are violating tradition by filibustering judicial nominees in the first place. Some anticipate that someday, in a future Congress with a Republican minority, they might want to use the filibuster themselves to block a bad nominee. Also, Democrats have threatened to bring the rest of the Senate's business to a halt if the constitutional option is exercised.

Q - Does the Family Research Council support the constitutional option?

Yes. Senators of both parties are free to vote against the confirmation of any judge they believe is unqualified. However, we believe that denying some judicial nominees a straight up-or-down vote on the floor of the Senate violates the principles of justice, democracy, and the Constitution.

Q - So what should I do?

A - Write to President Bush and urge him to appoint only judges who know their proper place in our constitutional system and who will interpret the law rather than rewrite it.

Then call, write, or e-mail the two U.S. senators from your state and urge them to do the following three things:

1) Support the confirmation of judges who will interpret the law and the Constitution in accordance with its original meaning and intent.

2) Oppose the use of filibusters to block judicial nominations, and allow an up-or-down vote of the full Senate on each nominee.

3) Support the "constitutional option" to end the filibuster of judicial nominations.

duplicate deleted
duplicate deleted

Parados was looking for a definition of "judicial activism" and BBB just gave a long definition from a particular advocacy group.

The advocacy group repeats the assertion that the judiciary is taking over functions belonging to the legislature. I still have the impression that there has always been an overlap of government functions among the three branches. I consider this overlap to be normal. (It does not mean that one branch is usurping the function of another branch.)

How have activist judges abused their power?
From the Family Research Council statement above:

"Q - How have activist judges abused their power?

A - Judges are abusing their power if they read into the Constitution principles that are not declared by the plain language of the Constitution. For example, the First Amendment says, "Congress shall make no law respecting an establishment of religion." But nowhere does it say that there should be a strict "separation of church and state" at all levels of government, barring any acknowledgment of God. The decision legalizing abortion was based on the "right to privacy"--but no such right is declared in the Constitution. [/b]

Roe vs Wade right to privacy was based on the 9th Amendment.---BBB

Ninth Amendment--Unenumerated Rights

NINTH AMENDMENT
UNENUMERATED RIGHTS

The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.

RIGHTS RETAINED BY THE PEOPLE

Aside from contending that a bill of rights was unnecessary, the
Federalists responded to those opposing ratification of the Constitution
because of the lack of a declaration of fundamental rights by arguing
that inasmuch as it would be impossible to list all rights it would be
dangerous to list some because there would be those who would seize on
the absence of the omitted rights to assert that government was
unrestrained as to those.\1\ Madison adverted to this argument in
presenting his proposed amendments to the House of Representatives. ``It
has been objected also against a bill of rights, that, by enumerating
particular exceptions to the grant of power, it would disparage those
rights which were not placed in that enumeration; and it might follow by
implication, that those rights which were not singled out, were intended
to be assigned into the hands of the General Government, and were
consequently insecure. This is one of the most plausible arguments I
have ever heard against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded against. I have
attempted it, as gentlemen may see by turning to the last clause of the
fourth resolution.''\2\ It is clear from its text and from Madison's
statement that the Amendment states but a rule of construction, making
clear that a Bill of Rights might not by implication be taken to
increase the powers of the national government in areas

not enumerated, and that it does not contain within itself any guarantee
of a right or a proscription of an infringement.\3\ Recently, however,
the Amendment has been construed to be positive affirmation of the
existence of rights which are not enumerated but which are nonetheless
protected by other provisions.

\1\The Federalist No. 84 (Modern Library ed. 1937).

\2\1 Annals of Congress 439 (1789). Earlier, Madison had written
to Jefferson: ``My own opinion has always been in favor of a bill of
rights; provided it be so framed as not to imply powers not meant to be
included in the enumeration. . . . I have not viewed it in an important
light--1. because I conceive that in a certain degree . . . the rights
in question are reserved by the manner in which the federal powers are
granted. 2. because there is great reason to fear that a positive
declaration of some of the most essential rights could not be obtained
in the requisite latitude. I am sure that the rights of conscience in
particular, if submitted to public definition would be narrowed much
more than they are likely ever to be by an assumed power.'' 5 Writings
of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story,
Commentaries on the Constitution of the United States 1898 (1833).

\3\To some extent, the Ninth and Tenth Amendments overlap with
respect to the question of unenumerated powers, one of the two concerns
expressed by Madison, more clearly in his letter to Jefferson but also
present in his introductory speech. Supra, n.2 and accompanying text.

The Ninth Amendment had been mentioned infrequently in decisions
of the Supreme Court\4\ until it became the subject of some exegesis by
several of the Justices in Griswold v. Connecticut.\5\ There a statute
prohibiting use of contraceptives was voided as an infringement of the
right of marital privacy. Justice Douglas, writing the opinion of the
Court, asserted that the ``specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance.''\6\ Thus, while privacy is nowhere
mentioned, it is one of the values served and protected by the First
Amendment, through its protection of associational rights, and by the
Third, the Fourth, and the Fifth Amendments as well. The Justice
recurred to the text of the Ninth Amendment, apparently to support the
thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference.
Justice Goldberg, concurring, devoted several pages to the Amendment.

\4\In United Public Workers v. Mitchell, 330 U.S. 75, 94-95
(1947), upholding the Hatch Act, the Court said: ``We accept appellant's
contention that the nature of political rights reserved to the people by
the Ninth and Tenth Amendments [is] involved. The right claimed as
inviolate may be stated as the right of a citizen to act as a party
official or worker to further his own political views. Thus we have a
measure of interference by the Hatch Act and the Rules with what
otherwise would be the freedom of the civil servant under the First,
Ninth, and Tenth Amendments.'' See Ashwander v. TVA, 297 U.S. 288, 300-11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143-44 (1939). See also Justice Chase's opinion in Calder v. Bull, 3 U.S. (3Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass'n
v. Topeka, 87 U.S. (20 Wall.) 655, 662-63 (1875).

\5\381 U.S. 479 (1965).

\6\Id. at 484. The opinion was joined by Chief Justice Warren
and by Justices Clark, Goldberg, and Brennan.

``The language and history of the Ninth Amendment reveal that
the Framers of the Constitution believed that there are additional
fundamental rights, protected from governmental infringement, which
exist alongside those fundamental rights specifically mentioned in the
first eight constitutional amendments. . . . To hold that a right so
basic and fundamental and so deep-rooted in our society as the right of
privacy in marriage may be infringed because that right is not
guaranteed in so many words by the first eight amendments to the
Constitution is to ignore the Ninth

Amendment and to give it no effect whatsoever. Moreover, a judicial
construction that this fundamental right is not protected by the
Constitution because it is not mentioned in explicit terms by one of the
first eight amendments or elsewhere in the Constitution would violate
the Ninth Amendment. . . . Nor do I mean to state that the Ninth
Amendment constitutes an independent source of right protected from
infringement by either the States or the Federal Government. Rather, the
Ninth Amendment shows a belief of the Constitution's authors that
fundamental rights exist that are not expressly enumerated in the first
eight amendments and an intent that the list of rights included there
not be deemed exhaustive.''\7\ While, therefore, neither opinion sought
to make of the Ninth Amendment a substantive source of constitutional
guarantees, both did read it as indicating a function of the courts to
interpose a veto with regard to legislative and executive efforts to
abridge other fundamental rights. In this case, both opinions seemed to
concur that the fundamental right claimed and upheld was derivative of
several express rights and in this case, really, the Ninth Amendment
added almost nothing to the argument. But if there is a claim of a
fundamental right which cannot reasonably be derived from one of the
provisions of the Bill of Rights, even with the Ninth Amendment, how is
the Court to determine, first, that it is fundamental, and second, that
it is protected from abridgment?\8\

\7\Id. at 488, 491, 492. Chief Justice Warren and Justice
Brennan joined this opinion. Justices Harlan and White concurred id. at
499, 502, without alluding to the Ninth Amendment, but instead basing
their conclusions on substantive due process, finding that the state
statute ``violates basic values implicit in the concept of ordered
liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id.
at 500. It would appear that the source of the fundamental rights to
which Justices Douglas and Goldberg referred must be found in a concept
of substantive due process, despite the former's express rejection of
this ground. Id. at 481-82. Justices Black and Stewart dissented.
Justice Black viewed the Ninth Amendment ground as essentially a
variation of the due process argument under which Justices claimed the
right to void legislation as irrational, unreasonable, or offensive,
without finding any violation of an express constitutional provision.

\8\Notice the recurrence to the Ninth Amendment as a
``constitutional `saving clause''' in Chief Justice Burger's plurality
opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80 & n.15
(1980). Scholarly efforts to establish the clause as a substantive
protection of rights include J. Ely, Democracy and Distrust--A Theory of
Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision
According to Law (New York: 1981), critically reviewed in W. Van
Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L.
J. 207 (1981). For a collection of articles on the Ninth Amendment, see
The Rights Retained by the People: The History and Meaning of the Ninth
Amendment (Randy E. Barnett, ed., 1989).

Has anyone heard of the "Constitution Restoration Act" introduced in Congress last year? A new version was introduced in March 2005. It is an attempt by some congressmen to place limitations on the Supreme Court and other federal courts.

I hadn't heard of it Wandel, but here presumably is the text of it:
http://thomas.loc.gov/cgi-bin/query/z?c109:S.520:

And Parados, thanks. I am far too compulsive to stay silent for long re a subject that interests me. I really thnk I am not understanding where you want to go with this, but as long as I'm not in totally over my head, I'll be around.

That Q and A tactic works well as a propaganda tool. If you can answer your own questions it puts you at an advantage in persuading those who, either can't be bothered to think critically or who haven't been taught to do so, that you are right. Rummy uses it to manage press conferences and he does it very well.

Q. Is there an attempt to destroy democracy in the US?
A. Yes, it's being done on many levels by different organisations that have one thing in common, they are all connected by extremist right wing beliefs. For example, their current tactic is to destroy the time-honoured protection of the doctrine of separation of powers by white-anting one of the legs of this three-legged stool, the one they don't control, the judiciary. Their method is to crudely attack the judiciary by confusing the ideas of legal interpretation and law-making. They are accusing judges of making new law and having no legal authority to do so, ignoring the fact that "new law" isn't being made but that existing law may be altered by the same process that exists in every other common law jurisdiction in the world and which has been used for hundreds of years in legal administration.

Q. Is this bad?
A. Yes it is bad. It's bad because it is the beginning of a coup d'etat. If you want untrammelled power in the legislature and the executive you must remove the third leg of the stool.

Q. What tactics are they using?
A. They're smearing judges individually and collectively. They're calling them "unelected" as if that is a significant point when it's plainly not. There's much more I could go on with but that's all I have to say right now.

Q. So are you done?
A. Not by a long chalk, just having a pause.

Q. Are we in big trouble?
A. Yes you are.

Some members of both the House and Senate do perceive that judicial activism is a problem. For more than a year, congressmen have been working on a "Constitution Restoration Act". The latest revision was introduced in the Senate on March 3, 2005. (Foxfyre has provided a link to the latest version in her last post.)

Below are three of the provisions of the proposed act:

"Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government."

"In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States."

"To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of--
(1) an offense for which the judge may be removed upon impeachment and conviction; and
(2) a breach of the standard of good behavior required by article III, section 1 of the Constitution."