Judicial Review, Judicial Restraint, Judicial Activism and Rights

Nathan Newman nathan at newman.org
Tue May 15 10:51:27 PDT 2001

----- Original Message ----- From: LeoCasey at aol.com

>Terms such as judicial activism and judicial restraint are relative,
contextual and
>entirely referential terms that have no fixed meanings.

Actually, while "judicial restraint" can be used in political ways, there is a rather simple neutral meaning that is not contextual. If the legislature passes a law and the courts rule that it is constitutional, that is judicial restraint. When they override the majority decision and rule it unconstitutional, that is judicial activism.

I agree with judicial activism for a narrow set of Bill of Rights protections, but it is judicial activism with a very fixed meaning.

>certainly the conservative
>majority of the Supreme Court would call itself strong believers in
'judicial r>estraint,' notwithstanding the lasty decade of decisions which culminated in
>Bush v. Gore.

They might call themselves such, but they would be lying. Even conservative like Ramesh Ponnuru of the National Review have noted that this Court is as activist as the conservatives considered the Warren Court. It engages not in judicial restraint "But it increasingly represents the rule of nine people-and, often enough, of one woman," Sandra Day O'Connor as the deciding swing vote.

>As far as I can see, it has the effect of merely moving
>oneself on to the terrain of conservative jurisprudence, since "judicial
>restraint" has become a signifier for a conservative approach to

Only in recent years. For most of this nation's history until the New Deal broke the power of the Supreme Court, it was progressives who denounced the rightwing judicial activism of the courts and called for judicial restraint. Under the Warren Court, however, progressives became addicted to the deus ex machina of the Supreme Court saving them from the democratic fights they might lose on occasion. Some of the decisions on basic speech freedoms and racial equality were necessary because racist structures were subverting democracy in a way that the normal electoral realm could not correct, but others were just political preferences of progressive Justices overriding other views decided in democratic forum.

>I happen to think, to go to the particulars, that the decisions carving out
>an unenumerated [not explicitly listed] right to privacy, which go back to
>the late 1800s in origin BTW, leading up to and including Roe v. Wade, were
>entirely correct.

It is exactly the basis of unenumerated rights in rightwing 19th century jurisprudence that made many progresives like Hugo Black denounce the Court's citing of such precedents, the same ones that struck down minimum wage laws, child labor laws and almost every other attempt at progressive legislation in the late 19th and early 20th century.

>It is important to note that the right to privacy is not the only
>unenumerated right which the Supreme Court has recognized. Freedom of
>association is another, very important unenumerated right.

That is not an unenumerated right. That is derived directly from the First Amendment. The Court recognized that a right to speak without the right to speak to someone is an empty right.

>Other important unenumerated rights, which have been recognized in whole
or in part by the
>Supreme Court or by the highest court in a state, include the right to

Sort of- its a right that polygamists, gays and anyone seen as deviant can be denied at will. Its a rather shaky right that has been used more to support certain other rights, such as against racism in the decisions striking down misagenation laws, but has little real content. And frankly has little content that the democratic process has not fully protected, since heterosexual married couples are not the most powerless voting group in society.

>right to travel

Explicitly in the constitution based on the privileges and immunities clause which guarantees that states must treat citizens from other states equally.

>right to die

Yes- and I agree with Justin that this is better decided in the democratic realm.

>right to live where one pleases

Not really- exclusionary zoning and other methods have been constitutionally validated to deny people the right to live with too many people in the same space.

>right to consensual sexual relations with another adult

Absolutely not- Bowers v. Hardwick made clear that consensual sexual relations is not a constitutional right; heterosexuals largely have a right to privacy based on marital relations and the need for procreation- one reason I find the "right to marry" to largely be a reactionary right as applied by the Court.

>and the right to confidential communication with one's doctor, lawyer
and/or minister.

This right is statutory, not constitutional.

>Eliminate unenumerated rights, and one has eliminated an
>awful lot of territory in the battle against an authoritarian state.

As noted above, not really. The bastion against the authoritarian state is the Bill of Rights and if followed to the letter - ie. Congress shall make NO law regarding speech - it would be plenty. In fact, the doctrine of unenumerated rights encourages the Courts to "read" in exceptions to the explicit text of the Constitution.

>And that would leave the problem of what the ninth amendment actually does
>when it protects "unenumerated" rights. For all of the talk of relying upon
>the actual text of the Constitution, those who want the court to foreclose
>the option of identifying "unenumerated" rights, are, in effect, demanding
>that it ignore the ninth amendment, treating it as a dead letter.


There is nothing to stop Congress from establishing rights not contained in the Bill of Rights. In fact, they do so all the time. There is no reason to give an unelected Court the right to impose their beliefs on the rest of society without any democratic accountability.

The Bill of Rights was at least ratified by democratic votes and in a sense reratified by the passage of the 14th Amendment to apply them to the states. Courts enforcing those rights are at least following a democratic mandate from the past. Finding new unenumerated rights is undemocratic in a way that no democratic society should accept from unelected judges.

-- Nathan Newman

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