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Activist Judges

 
 
au1929
 
Reply Wed 5 Oct, 2005 09:18 am
Activist Judges. The democrates have the name but the republicans play the game.


Quote:
Republicans Love Activist Judges

We’ve always known that the Right’s outrage against activist judges is yet another example of Lakovian framing. Republicans use the term “activist” to designate judges whose opinions they don’t like, not those who are “making legislation”, as they claim. In fact, as this study published in the NY Times shows, Republican judges are far more activist than Democratic ones, at least by one very clear measure:


Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court’s decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63%
Kennedy 64.06%
Scalia 56.25%
Rehnquist 46.88%
O’Connor 46.77%
Souter 42.19%
Stevens 39.34%
Ginsburg 39.06%
Breyer 28.13%

One conclusion our data suggests is that those justices often considered more “liberal” - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.



Republicans actually love activist judges but understand the political advantages of claiming otherwise. Just as they claim to love “local control” while working as hard as they can to extend the strong arm of government…



How would you define activist judge?
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dyslexia
 
  1  
Reply Wed 5 Oct, 2005 10:22 am
An "activist" judge is one who reaches decisions that are disagreeable to me.
0 Replies
 
joefromchicago
 
  1  
Reply Wed 5 Oct, 2005 11:30 am
dyslexia wrote:
An "activist" judge is one who reaches decisions that are disagreeable to me.

That's the only correct definition.
0 Replies
 
sozobe
 
  1  
Reply Wed 5 Oct, 2005 11:31 am
We're done here, yep.
0 Replies
 
nimh
 
  1  
Reply Wed 5 Oct, 2005 11:34 am
Heh.
0 Replies
 
James Madison
 
  1  
Reply Wed 5 Oct, 2005 12:28 pm
An activist judge is any judge whose interpretation of a statute or provision of the U.S. Constitution is not supported by the language of the statute or constitutional provision.

Let's use a familiar example.

The Due Process Clause of the 14th amendment reads as follows.

"No state shall deprive any person of life, liberty, or property without due process of law."

Now the U.S. Supreme Court in Roe v. Wade held the word "liberty" in this clause protected a womans right to an abortion.

But this is an interpretation which the plain language of the text does not support. The clause does not guarantee any additional liberties or rights. The plain language guarantees only one thing, "PROCESS". In fact the plain language guarantees only "DUE PROCESS".

Due Process is the only thing being guaranteed in the 14th amendment Due Process clause. The clause does not guarantee anything else.

So the state can take away your life, liberty, and property so long as "due process" is given. The clause only guarantees due process.

So Roe v. Wade is a great example where the majority on the U.S. Supreme Court put on their "activist" robes.

So what is meant by "activist" judges is when a judge while interperting a statute or constitutional provision arrives at an interpretation the plain language of the text cannot bear.
0 Replies
 
goodfielder
 
  1  
Reply Wed 5 Oct, 2005 08:35 pm
Since the Constitution doesn't "give" any rights how can it be interpreted as taking any away?

It's my understanding (which I've learned from this site) that the Constitution seeks to limit the reach of government into what might be called "natural rights".

So, regarding the 14th Amendment and the decision in Roe v Wade, I think the Supreme Court in fact was limiting the legal ability of government to interfere in the lives of individuals in finding that the Texas statute being examined was unconstitutional because it sought to break the limits on governmental authority sety by the said 14th Amendment.

I shall now wait for my answer to be graded Very Happy

As for defining an activist judge, it's where the judge properly interprets, within the contemporary framework of society, a written constitution. In other words, that judge seeks to apply the law in a contemporary context rather than the context in which the constitution was originally written.

And I don't think that's a bad thing. I would have thought that the framers of a constitution written in the 18th century would think their descendants quite strange to think that the principles of the constitution would be seen to be ossified. How else can any constitutional document be relevant to a society in the 21st century unless it is interpreted in a contemporary fashion?

From what I've read in this thread and in other places, it's okay for a judge to be reactionary and activist but not liberal and activist. That view is rank hypocrisy.
0 Replies
 
Debra Law
 
  1  
Reply Thu 6 Oct, 2005 02:21 am
James Madison wrote:
An activist judge is any judge whose interpretation of a statute or provision of the U.S. Constitution is not supported by the language of the statute or constitutional provision.

Let's use a familiar example.

The Due Process Clause of the 14th amendment reads as follows.

"No state shall deprive any person of life, liberty, or property without due process of law."

Now the U.S. Supreme Court in Roe v. Wade held the word "liberty" in this clause protected a womans right to an abortion.

But this is an interpretation which the plain language of the text does not support. The clause does not guarantee any additional liberties or rights. The plain language guarantees only one thing, "PROCESS". In fact the plain language guarantees only "DUE PROCESS".

Due Process is the only thing being guaranteed in the 14th amendment Due Process clause. The clause does not guarantee anything else.

So the state can take away your life, liberty, and property so long as "due process" is given. The clause only guarantees due process.

So Roe v. Wade is a great example where the majority on the U.S. Supreme Court put on their "activist" robes.

So what is meant by "activist" judges is when a judge while interperting a statute or constitutional provision arrives at an interpretation the plain language of the text cannot bear.


You're wrong. You're so wrong that you're not just standing in left field, you're in OUTER SPACE. Your statements have absolutely no basis in fact or law. When you have researched the due process clause of the Fourteenth Amendment and educated yourself appropriately, come back and try again.
0 Replies
 
Debra Law
 
  1  
Reply Thu 6 Oct, 2005 04:34 am
Hi Goodfielder:

I'll try to answer or respond to some of your comments.

goodfielder wrote:
. . . So, regarding the 14th Amendment and the decision in Roe v Wade, I think the Supreme Court in fact was limiting the legal ability of government to interfere in the lives of individuals in finding that the Texas statute being examined was unconstitutional because it sought to break the limits on governmental authority sety by the said 14th Amendment.


The Fifth Amendment's Due Process Clause (1791):

No person shall . . . nor be deprived of life, liberty, or property, without due process of law; . . .

The Fourteenth Amendment's Due Process Clause (1868):

. . . nor shall any state deprive any person of life, liberty, or property, without due process of law; . . .

Contrary to JM's assertion, the due process clause encompasses far more than mere "process."

The concept of due process dates back many centuries and was embodied in the Magna Carta (1215):

""No free man shall be taken or imprisoned or disseised, outlawed, banished, or in any way destroyed, nor will we proceed against him, except by the lawful judgment of his peers or by the law of the land."

Due Process embodies the "law of the land" which protects individuals from arbitrary use of governmental power. See DEN EX DEM. MURRAY v. HOBOKEN LAND & IMP. CO., 59 U.S. 272 (1855) (The article [the due process clause] is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will).

Due process has two components: procedural due process and substantive due process.

Procedural due process (at a minimum) is merely notice and an opportunity to be heard.

There are some fundamental life, liberty, and property interests that are so important that the government cannot deprive you of those interests no matter how fair the process might be. See, e.g., ZINERMON v. BURCH, 494 U.S. 113 (1990). The "law of the land" protects individuals from the arbitrary use of governmental powers--and the government cannot proceed against an individual without first abiding by the law of the land. When the government infringes fundamental rights, the law of the land--the substantive component of the due process clauses of the Fifth (applicable to the federal government) and Fourteenth Amendment (applicable to state governments)--requires the government to have a compelling interest and to use means that are necessary and narrowly tailored to serve that compelling interest.

Individual rights that are deemed "fundamental" or "implicit in the concept of ordered liberty," are included in the guarantee of personal privacy protected by the due process clause. In ROE v. WADE, 410 U.S. 113 (1973), the Supreme Court ruled that a woman had a qualified (not absolute) right to determine her own procreative destiny and terminate a pregnancy before the fetus become viable.

In PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992), the Supreme Court reaffirmed the essential holding of Roe v. Wade.

The Court stated:

Quote:
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth [505 U.S. 833, 847] Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U.S. 110, 127 -128, n. 6 (1989) (opinion of SCALIA, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal [505 U.S. 833, 848] in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94 -99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684 -686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481 -482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id. at 502-507, (WHITE, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399 -403 (1923).

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. [505 U.S. 833, 849] Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds). . . .

The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. . . .

. . . As we described in [505 U.S. 833, 859] Carey v. Population Services International, supra, the liberty which encompasses those decisions


"includes "the interest in independence in making certain kinds of important decisions." While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions "`relating to marriage, procreation, contraception, family relationships, and childrearing and education.'" 431 U.S., at 684 -685 (citations omitted).

The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E.g., Arnold v. Board of Education of Escambia County, Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait); see also In re Quinlan, 70 N. J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) (relying on Roe in finding a right to terminate medical treatment).


The Court's observation is quite chilling. If a woman does not have a fundamental liberty interest protected by the constitution with respect to controlling her own procreative destiny (a private matter), then the state would not only have the power to prohibit abortions--but the state would also have the power to REQUIRE abortions to further state interests.

So, you are correct. The Fourteenth Amendment protects fundamental liberty interests and limits the state's power to intrude upon those interests.


Quote:
I shall now wait for my answer to be graded Very Happy


I give you an "A" on your understanding of the Fourteenth Amendment with respect to Roe v. Wade. Smile
0 Replies
 
Debra Law
 
  1  
Reply Thu 6 Oct, 2005 05:03 am
goodfielder wrote:
. . . I would have thought that the framers of a constitution written in the 18th century would think their descendants quite strange to think that the principles of the constitution would be seen to be ossified. How else can any constitutional document be relevant to a society in the 21st century unless it is interpreted in a contemporary fashion?


And you are correct again.

As stated in my previous post, "due process of law" means proceeding in accordance with the "law of the land."

The law of the land never remains stagnant or frozen in time. The law of the land, as it exists today, would never allow the government to inflict capital punishment on a petty thief who picks your pocket. We're constantly drawing new lines as we recognize and give substance to individual rights and concomitantly withdraw power from the government to circumvent those rights. The law of the land evolves as society evolves and becomes more enlightened.

See, e.g., LAWRENCE et al. v. TEXAS:

Quote:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.


We're making progress, one little inch, more or less, every hundred years or so. Laughing
0 Replies
 
squinney
 
  1  
Reply Thu 6 Oct, 2005 05:38 am
Goodfielder - What a Teachers Pet! Razz
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goodfielder
 
  1  
Reply Thu 6 Oct, 2005 05:39 am
My study here has yielded results Very Happy Thank you once more Debra_Law.
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squinney
 
  1  
Reply Thu 6 Oct, 2005 06:08 am
If only more Americans understood the Constitution as well as you do, Goodfielder.

To me an activist judge is one that interprets the law based on partisan or personal beliefs rather than the Constitution or clear reading of the language of the law.

An activist judge may be one who, sitting in a lower court with no Constitutional question before them, decides based on personal / partisan political grounds, thus extending the "activist judge" label to more than just the Supremes.

Even family court has activist judges in our neck of the woods, with decisions being made based on attorneys they have drinks with in the Capital Club, or basic beliefs about male / female roles within the family rather than a strict reading of the law.

An example would be that North Carolina still has laws pertaining to Alimony. The current trend is for alimony to not be awarded since woman, for the most part, are no longer at home tending to the needs of their husband and family. Most woman now work and have income they contribute to the household, negating alimony. However, North Carolina still has laws that regulate and determine alimony, but the Court tends to interpret those laws rather loosely giving rather varied results totally dependant on the judge hearing the case. The attorneys know which judge they want to hear their case depending on which client (husband or wife) they have.
0 Replies
 
goodfielder
 
  1  
Reply Thu 6 Oct, 2005 07:28 am
squinney wrote:
Goodfielder - What a Teachers Pet! Razz


I can refer you to a whole line of teachers who would vehemently disagree with you squinney Laughing

And I really don't understand the Constitution - but it's nice of you to say so - I'm really only learning as I read the debates here and I have to say it's complex but it's beginning to come together.
0 Replies
 
Debra Law
 
  1  
Reply Thu 6 Oct, 2005 08:46 am
squinney wrote:
. . . Even family court has activist judges in our neck of the woods, with decisions being made based on attorneys they have drinks with in the Capital Club, or basic beliefs about male / female roles within the family rather than a strict reading of the law.

An example would be that North Carolina still has laws pertaining to Alimony. The current trend is for alimony to not be awarded since woman, for the most part, are no longer at home tending to the needs of their husband and family. Most woman now work and have income they contribute to the household, negating alimony. However, North Carolina still has laws that regulate and determine alimony, but the Court tends to interpret those laws rather loosely giving rather varied results totally dependant on the judge hearing the case. The attorneys know which judge they want to hear their case depending on which client (husband or wife) they have.


I call that "justice for sale," and "you scratch my back, I scratch yours."

It's very interesting and disheartening when you practice law to learn the "hard way" that your client has no chance of winning his/her case because the assigned judge and opposing counsel are in bed together. This is particularly true where judges cannot get elected unless they have the backing of the "powerful, prestigious" law firms and their lawyers (who, by the way, occupy all the offices in the local and state bar associations, occupy all the high offices in the executive branch of government, and sit on all the court administration boards).

The big wig lawyers in my state have impressive win records. I suppose that means they are all fantastic lawyers and all of their plaintiff clients have winning cases and all of their defendant clients have iron-clad defenses to claims for money damages. After all, they win, win, win . . . their clients pay them big money . . . and the next week, they endorse the judge as "highly qualified, with integrity" and have their rich clients finance the judge's re-election campaign.

In one case that went all the way to the Supreme Court (In re Ruffalo), a big wig attorney who was president of the bar association and represented rich railway companies devised a plan to get rid of his client's nemesis--an attorney who represented injured railway workers in federal court (where judges have life appointments and are less compelled to issue rulings based on political pressures). The rich railway companies don't want the claims of injured workers cutting into their profits; after all, those darn injured workers are a disposable commodity and can be easily replaced. Big Wig inititated a complaint with the bar association and had the lawyer for injured workers disbarred--an easy thing for the Big Wig to do when all of his crony friends sat on the disciplinary board.

In the run of the mill domestic relations case, when I didn't have to worry about opposing counsel being the chairperson of the judge's re-election committee, I knew whether my client would get the shaft or not based on my client's gender and the judge assigned to the case. It was common knowledge within the legal community that if you represented the husband, you wanted Judge O; if you represented the wife, you wanted Judge H.

If you're a lawyer and you complain, you're going to step on toes that don't like to be stepped on--which is "professional suicide." What good does it do to complain when the people in power within the legal community are in charge of policing themselves? It's highly unlikely that they'll slap themselves on the wrist--but they'll slap the complainer. On the other hand, keeping one's mouth shut in the face of blatant, ongoing injustice is tantamount to selling out one's ideals in order to make a less than honest living. Being a practicing lawyer sucks--unless, of course, you get a big wig position in a big wig firm and arrange for all your crony friends to occupy all the seats of power and your clients finance all the judicial election campaigns--then maybe you can live the good life on earth. But, if there's a purgatory or a hell . . . well, . . . .

Enough RANT.
0 Replies
 
James Madison
 
  1  
Reply Thu 6 Oct, 2005 11:17 am
Quote:
You're wrong. You're so wrong that you're not just standing in left field, you're in OUTER SPACE. Your statements have absolutely no basis in fact or law. When you have researched the due process clause of the Fourteenth Amendment and educated yourself appropriately, come back and try again.


The only one in left field is yourself. In fact you could not even articulate an educated response as to why I am wrong.

First of all the Due Process guarantees only one thing, due process. The plain language is simple to understand. "No state shall deprive any person of life, liberty, or property WITHOUT due process of law." The phrase is stating in unequivcal terms your life, liberty, and property can be taken so long as "due process" is given. So the phrase guarantees only one thing, due process.

Second of all if anyone needs to educate themselves as to the meaning of due process it is yourself. What do the words "due process" mean?

Due process only means, as Justice Scalia eloquently put it, "a validly enacted statute and a fair trial." A Matter of Interpretation: Federal Courts and the Law.

In fact Alexander Hamilton did not believe the words "due process" also known as "the laws of the land" applied to acts of the legislature but to the judiciary only. By the law of the land or as a recent act of the assembly had put it, by due process of law, has a precise technical import and only applicable to the process and proceedings of the courts of justice; THEY CAN NEVER be referred to an act of legislature." Hamilton remarks in New York Assembly, February 6, 1787, in the Papers of Alexander Hamilton.

So the words "due process" as it appears in the 14th amendment quite possibly, according to Alexander Hamilton, do not apply to acts of the legislature. Yet the U.S. Supreme Court has held it does otherwise.

Now due process meant, in 1868, a "validly" enacted statute and a "fair trial". Consequently, all that is required to take away your liberty, life, and property is a validly enacted statute and a fair trial.

Now has the U.S. Supreme Court construed "due process" to mean something entirely different? Yes but this is the point. Their "construction" is not supportable by the text, at all. Substantive due process is not what the words "due process" mean in the 14th amendment.

Now Debra why don't you do a little research on this topic and actually post something constructive and useful because right now you do not have an argument at all.

P.S.

Remember we are talking about "judicial activism" and the meaning of it. Particularly, judicial activism is an interpretation which is not supported by the words of the text. So unless you have some evidence the words "due process" meant "substantive due process" back in 1868, which you don't, then you are in fact wrong legally, factually, and historically.
0 Replies
 
James Madison
 
  1  
Reply Thu 6 Oct, 2005 11:19 am
Quote:
You're wrong. You're so wrong that you're not just standing in left field, you're in OUTER SPACE. Your statements have absolutely no basis in fact or law. When you have researched the due process clause of the Fourteenth Amendment and educated yourself appropriately, come back and try again.


The only one in left field is yourself. In fact you could not even articulate an educated response as to why I am wrong.

First of all the Due Process guarantees only one thing, due process. The plain language is simple to understand. "No state shall deprive any person of life, liberty, or property WITHOUT due process of law." The phrase is stating in unequivcal terms your life, liberty, and property can be taken so long as "due process" is given. So the phrase guarantees only one thing, due process.

Second of all if anyone needs to educate themselves as to the meaning of due process it is yourself. What do the words "due process" mean?

Due process only means, as Justice Scalia eloquently put it, "a validly enacted statute and a fair trial." A Matter of Interpretation: Federal Courts and the Law.

In fact Alexander Hamilton did not believe the words "due process" also known as "the laws of the land" applied to acts of the legislature but to the judiciary only. By the law of the land or as a recent act of the assembly had put it, by due process of law, has a precise technical import and only applicable to the process and proceedings of the courts of justice; THEY CAN NEVER be referred to an act of legislature." Hamilton remarks in New York Assembly, February 6, 1787, in the Papers of Alexander Hamilton.

So the words "due process" as it appears in the 14th amendment quite possibly, according to Alexander Hamilton, do not apply to acts of the legislature. Yet the U.S. Supreme Court has held it does otherwise.

Now due process meant, in 1868, a "validly" enacted statute and a "fair trial". Consequently, all that is required to take away your liberty, life, and property is a validly enacted statute and a fair trial.

Now has the U.S. Supreme Court construed "due process" to mean something entirely different? Yes but this is the point. Their "construction" is not supportable by the text, at all. Substantive due process is not what the words "due process" mean in the 14th amendment.

Now Debra why don't you do a little research on this topic and actually post something constructive and useful because right now you do not have an argument at all.

P.S.

Remember we are talking about "judicial activism" and the meaning of it. Particularly, judicial activism is an interpretation which is not supported by the words of the text. So unless you have some evidence the words "due process" meant "substantive due process" back in 1868, which you don't, then you are in fact wrong legally, factually, and historically.
0 Replies
 
James Madison
 
  1  
Reply Thu 6 Oct, 2005 11:19 am
Debra is superb at magic tricks. Let's look at a few she tries to pull by examining her caselaw.

First of all it is important to observe Debra law said the words "due process" include procedural and substantive due process. She is wrong. The words include only "procedural due process.

Quote:
Due Process embodies the "law of the land" which protects individuals from arbitrary use of governmental power. See DEN EX DEM. MURRAY v. HOBOKEN LAND & IMP. CO., 59 U.S. 272 (1855) (The article [the due process clause] is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will).


Notice the Court uses the phrase of "law of the land"? This is the exact same phrase Hamilton was addressing in my previous post. I am convinced Debra has little knowledge as to what is meant by the phrase "law of the land" as it existed in 1855. First of all the "law of the land" was used interchangeably with "due process". In fact Hamilton even acknowledged these two phrases meant the same thing. See Alexander Hamilton's Papers, Harold Syrett et al (New York, 1961-).

Now there is a dispute between our Founding Father and Framer of the U.S. Constitution as to whether or not the words "due process" apply to acts of the legislature, Hamilton argued they did not, but it is more important to observe the Court in this case makes no mention of "substantive due process". Also observe the 14th amendment did not come into existence until 13 year after this case was decided and it is the words "due process" in the 14th amendment we are talking about.

But in all fairness the words "due process" in the 14th amendment were understood to mean what the Court in 1855 understood the phrase to mean. What is the Court saying? Exactly what Scalia said the words "due process" mean, which was a validly enacted statute and a fair trial. See Matter of Interpretation: Federal Courts and the Law, by Justice Scalia, pages 24-25.

In the case cited by Debra the Court is observing the words "due process" require a validly enacted statute and a fair trial. Scalia has found this meaning in examining the mountains of case law and "traditions" of this country.

Notice, however, the Court in 1855 makes no mention of "substantive due process." Do you want to know why? Because the words "due process" were not understood to mean anything close in semblance to "substantive due process". The words due process in 1855 and 1868 did not mean anything close to substantive due process.

This is why Debra has to cite only cases of the 20th and 21st century to argue the words "due process" mean "substantive due process".

Furthermore, what Debra has not posted for you is the Court's original understanding of the meaning of the phrase as it appears in the 14th amendment. The Court when confronted with the due process clause originally interpreted as I have, Scalia has, and other TEXTUALISTS rightfully have.

The Court in a series of cases, starting with the Slaughter House Cases, observed the due process clause of the 14th amendment GUARANTEED only one thing, DUE PROCESS, and nothing more.

Which brings me to my final point and relevant to the topic of this thread after all. The only way Debra can justify "substantive due process" is by ignoring the plain text. When Debra says the due process clause protects a womans decision to have an abortion, or marital privacy, what she is in effect saying is the word "liberty" as found in the 14th amendent includes "fundamental rights" which cannot be restricted at all or only after the state passes strict scrutiny.

But read the clause again. Debra has a textually indefensible argument. Oh she can quote all the case law she wants but this misses the point. The point is "Does the TEXT, does the plain ENGLISH of the TEXT support this interpretation?" That is the question. Her position on substantive due process does not. All the cited Court cases do not prove the "interpretation" the Court takes is supported by the text. There are only two ways to determine whether or not the interpretation taken by the Court is textually defensible. Look at the plain english of the text or find the "original meaning" of the text. So while Debra can cite a bunch of case law, in fact I can too, Griswold, Roe, Loving, and Lawrence to name a few, which use "substantive due process" all of it begs the question of WHETHER or NOT the Court's interpretation in EACH case is SUPPORTED by the Plain English of the text.

"No state shall deprive any person of life, liberty, or property without due process of law." The plain english is clear. It is not guaranteeing any additional liberties, property, or life. All it is guaranteeing is the state CAN take your life, your liberty, and your property so long as "due process" is given. Due process is all the plain english of the text is GUARENTEEING, and nothing more.

The plain english says nothing about fundamental rights or compelling state interests.

So the only way Debra arrives to her conclusion it guarantees more is by ignoring the plain english of the text. Which is of course the point of this topic. Debra you make a find "judicial activist" judge.

Quote:
The law of the land never remains stagnant or frozen in time.


That is superb! But we are talking about the U.S. Constitution. The words used do have a limited range of meaning and therefore, only a limited range of interpretations are permissible. In this respect the U.S. Constitution does remain stagnant and this is what the Framers wanted! That is why the made the "amendment" process so difficult. The purpose was to keep the U.S. Constitution stagnant, consistent, constant in it's meaning and any desire to change it required a very difficult amendment process.

If we could simply take any interpretation of the U.S. Constitution we wanted, if we could simply take any meaning of the words used in the U.S. Constitution, and alter it's meaning so easily, the Framers would have never wasted their time in writing it down much less including an amendemnt process!

You want change, amend the U.S. Constitution. To take an interpretation that is not even textually supportable is laughable.
0 Replies
 
James Madison
 
  1  
Reply Thu 6 Oct, 2005 12:17 pm
Quote:
Since the Constitution doesn't "give" any rights how can it be interpreted as taking any away?


Goodfielder:

We are specifically talking about the Due Process Clause of the 14th amendment.

Which reads:No state shall deprive any person of life, liberty, or property without due process of law.

It is important to read carefully, critically, and logically.

First of all what do the words "due process" mean? Well they do not mean "there are some rights so fundamental the state can never infringe upon them or may do so as long as strict scrutiny is satisfied." How do I know this for a fact?

To get to this answer requires a quick examination of how to read a statute or constitutional provision. I am a textualist. I believed words do have a limited range of meaning and no interpretation which goes beyond these limited meanings is permissible.

A textualist also looks for "original meaning". What is "original meaning'? Original meaning is how the drafters, framers, of the text understood what the "words" to mean.

In 1787 the words "due process" had a specific and particular meaning and the best way to extrapolate what it meant is to either consult a dictionary in existence in 1787 or shortly thereafter, or consult the "writings" of educated men of the time to ascertain what the word meant in 1787.

The words "due process" also had a specific and particular meaning in 1868 when they appeared in the 14th amendment. Again the same process for examining what the words meant in 1787 will be used to determine their meaning in 1868.

Now going off of the plain English it is abundantly clear the words do not guarantee any additional liberties. It says your life, liberty, and property may be taken so long as "due process" is given to you. So quite clearly the plain english of the phrase is promising you only 1 thing, due process.

What does this mean? It means substantive due process is not textually supportable. If the plain english is not guaranteeing you any additional liberties, and it isn't, then you cannot look at the word liberty, as the Court does and Debra apparently approves, and say the word "liberty" protects privacy in general, abortion, marital decisions to use birth control, and so forth.

The fact is substantive due process is not textually supportable. The PLAIN ENGLISH is not guaranteeing any additional liberties, property, or life. The plain English is guaranteeing you "due process" only before the state can take away your life, liberty, and property.

What Debra has conveniently done, however, is engaged us all in a nice red herring as to what "due process" means. It is irrelevant what due process means because substantive due process finds it's basis not necessarily in the words "due process" but in the word "liberty".

Substantive due process looks at the word "liberty" and determines this word protects other rights, such as "privacy" or "other freedoms" and deems them fundamental.

But as I have already said, this interpretation is not defensible by the text itself. The text does not promise you additional liberties but promises you "due process" and nothing more.
0 Replies
 
James Madison
 
  1  
Reply Thu 6 Oct, 2005 12:24 pm
I will add this entire discussion of "due process" really is a digression. It is a red herring.

Substantive due process is based in the word "liberty" as it appears in the 14th amendment. If you read Roe v. Wade and other substantive due process cases the Court specifically finds the "right" grounded in the word "liberty" as it appears in the 14th amendment and not in the "due process clause".

I am at a loss why Debra would even bring up the words "due process" as they have little relevance to the discussion.

The fact is the word "liberty" is what is being focused upon.

Now since the entire discussion about due process is a red herring there is not point in even addressing it.

My contention is a judicial activist is a judge whose interpretation is not supported by the plain english of the text.

Reading the plain english of the text of the 14th amendment tells me the clause is not guaranteeing any additional liberties but only guaranteeing "due process".

Now the "standards of review" are more commonly associated with "due process". According to the Court if the right is fundamental, meaning they have magically and non-textually found the word "liberty" to protect another right, then the state must pass "strict scrutiny" before infringing upon it.

But substantive due process has its basis in the word "liberty".
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