It Starts...

Foxfyre wrote:

Try "The Government Can Take Your House" thread for the most recent example. I didn't get that Bork was basing his thesis on a criticism of Sandra Day O'Connor at all.....I think you should reread the piece.

No, I said his specific examples were all about her decisions. There were no other specific case examples that I read. Perhaps I will re-read and see if there are some I missed.

I'm on record as completely disagreeing with the decision being discussed in the thread you mention. What I'm unable to determine, however, is when a bad decision, or one that I personally disagree with, becomes a concerted effort to circumvent legislative bodies.

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I think he cited some excellent examples to back up his thesis. He mentioned the vacancy left by O'Connor as significant because while he seems to like her a lot, he notes his reasons for not wanting her replaced with another like her; namely that while she does get it right some of the time, she does not seem to grasp what judicial activism is or how dangerous it is. And he was clear that he wasn't pointing that finger at only her.

Yes, he said all those things. But judicial activism is still a very abstract concept and hasn't come any closer to being defined, neither in his article or anywhere in this thread. It's that definition I'm looking for.

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Judicial activism is a ruling that in effect creates a law where none existed before, or which changes, amends, or expands the letter and intent of the constitution.

Bork sees it as dangerous in that it slowly but surely promotes a nation of anarchists rather than a homogenous social order.

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D'artagnan wrote:

Here's my take on an answer, FreeDuck: "Legislating from the bench" is when the Court makes decisions that I don't agree with...

That's the exact definition I would offer.

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Foxfyre wrote:

Judicial activism is a ruling that in effect creates a law where none existed before, or which changes, amends, or expands the letter and intent of the constitution.

Ok, now we're getting somewhere. So where there are differences of opinion as to the intent of the Constitution, there is room for the last to develop. As to the first two, there is legal precedent and then there is law. To the extent that the court is supposed to be a check on the legislative branch it is within its intended powers to strike down laws. This might have the effect of law in that it prevents unconstitutional laws from being made, but it seems that's entirely within the framers' intent.

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Bork sees it as dangerous in that it slowly but surely promotes a nation of anarchists rather than a homogenous social order.

Hmmm. This seems like an interesting thing to discuss. I'm not sure I agree with his take at all. But I'm neither a judge nor a lawyer.

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FD writes

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To the extent that the court is supposed to be a check on the legislative branch it is within its intended powers to strike down laws. This might have the effect of law in that it prevents unconstitutional laws from being made, but it seems that's entirely within the framers' intent.

Yes we are in agreement on this one as previously posted in this thread. It is the duty and role of the High Court precisely to rule as constitutional or unconstitutional laws made by legislative bodies when these come into question. Where it gets fuzzy is on the part as to whether it is constitutional or unconsitutional and here is the whole heart of the argument. Those judges who presume to expand the original intent of the constitution to include what they perceive to be a moral imperative (from a paraphrased Bork analysis) have stepped outside their judicial jurisdiction and are into the realm of judicial activism; i.e. creating a law where none existed before. What Bork is pleading for are judges who will not do this; judges who can bite their lips and refrain from making a ruling outside their jurisdiction no matter how strongly they may feel about it personally.

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Back later....gotta get some work done for awhile.

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Foxfyre wrote:

Where it gets fuzzy is on the part as to whether it is constitutional or unconsitutional and here is the whole heart of the argument.

I agree this is where the heart of the argument lies. What I wonder is, since reasonable minds can differ, what objective test is there that we could apply to know whether a certain judgment or decision falls outside of a reasonable interpretation of constitutional intent? Bork has his own opinion, others have differing ones. What makes his correct?

Laws have been and always will be subject to judicial interpretation. That's why we have judges and that's why we have a high court. That's also why we require a majority of justices to be in agreement before a ruling can be made. I can think of no better way.

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FD writes

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I agree this is where the heart of the argument lies. What I wonder is, since reasonable minds can differ, what objective test is there that we could apply to know whether a certain judgment or decision falls outside of a reasonable interpretation of constitutional intent? Bork has his own opinion, others have differing ones. What makes his correct?

I'm not prepared to pronounce anybody infallabile, and that includes Judge Bork despite my admiration and appreciation for him. I think it is one of the nation's tragedies that he is not and will never be on the high court.

His view (and, arrogantly, my view) is that all justices should be firmly grounded in constitutional law as it was originally intended and that requires going back to the intent of those who wrote the Constitution. So they study the Federalists and others who participated in the many many drafts that ultimately were edited into the final document. Every time they deviate from that criteria, they remove one more protection or one more liberty from the people. We need judges who won't do that.

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But a federalist interpretation of intent is only one of several, is it not?

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Yes, it took the several to produce the final drafts that were edited into the constitution. The founders, both the Federalists and others, were in at least a substantial majority agreement on every point before it went into the final document. At least that's the way I recall it from a history and poli-sci classes with a LOT of age on them now.

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So, do you think that the founding fathers expected us to look at all of those articles that were written for New Yorkers to derive the intent behind the Constitution? If I understand, three or four of the founders were involved in writing those articles. What about everybody else?

Again, are there other valid interpretations of intent, or is Bork's favorite the only one? And how would you know if justices were not using the federalist papers to determine intent?

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There were a few who edited the final draft. There were many who participated in the process that resulted in the final draft. I am woefully inadequate to determine what anybody's intent about anything is or might have been, and I believe people can disagree and remain honorable.
So of course there can be differences of opinion re both intent and interpretation. This particular case is one of those. You and I (and Bork and bunch of other scholars) think the majority got it wrong and he minority got it right. Based on her posts on another thread, Debra Law thinks the majority got it right and the minority is wrong on this one. Everybody has their reasons for thinking what we think. I don't think any of us are dishonorable.

I have spent years listening to Robert Bork every chance I get and I have read everything he has written that has crossed my path. I (and many others) consider him one of the most competent Constitution scholars out there and, as I am not, I trust his take on things.

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And I guess I don't. So my problem with labeling someone an activist judge is that it appears to be impossible to differentiate between judicial activism and a difference in opinion as to the intent of the constitution.

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