Judicial Review, Judicial Restraint, Judicial Activism and Rights

Justin Schwartz jkschw at hotmail.com
Tue May 15 11:25:15 PDT 2001

You'll never catch me using the term "judicial activist" or "judicial restraint," except for rhetorical purposes. I agree with Nathan that these terms are meaningless. I said I was judicially "conservative," which means, in my terms, that I think we should respect plain text for democratic reasons, and be modest about judicial lawmaking, except to defend democratic and minority rights, for the same reasons. Leo asks me what I think, on this view about the Griswold-Roe-Casey line of privacy cases. Today, I think they are entrenched precedent. Were they rightly decided at the time? Well, I think the case can be made that a woman's right to choose is a fundamental democratic right. I would have written the case law in terms of equal protection, myself, rather than appealing to unenumerated privacy rights. As for the Ninth Amendment, as a matter of, it's meaningless. Let's hope it stays that way.


>From: LeoCasey at aol.com
>Reply-To: lbo-talk at lists.panix.com
>To: lbo-talk at lists.panix.com
>Subject: Judicial Review, Judicial Restraint, Judicial Activism and Rights
>Date: Tue, 15 May 2001 11:41:45 EDT
>It looks like all of that legal education has had a deleterious effect on
>political thought of Comrades Nathan and Justin, who have both surprised me
>with the extent of their professed allegiance to judicial restraint. Terms
>such as judicial activism and judicial restraint are relative, contextual
>entirely referential terms that have no fixed meanings. In this, they are
>like the terms fast and slow: 45 MPH is so slow as to risk causing an
>accident on a highway; it is so fast as to be clearly irresponsible in a
>school zone around dismissal time.
>I do not know what it means to call oneself an opponent of judicial
>or a supporter of judicial restraint in general [certainly the conservative
>majority of the Supreme Court would call itself strong believers in
>restraint,' notwithstanding the lasty decade of decisions which culminated
>Bush v. Gore.] 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
>jurisprudence. One might try to impose a more specific definition upon the
>term, such as deference to the will of the majority through its elected
>legislatures, but even this is problematic, as one denies that there are
>instances when the will of the majority must be overridden. And at best,
>would be left with a term of public self-identification that the public
>understands differently from the self-identifier.
>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. In some explicit commentary, Nathan disagrees; Justin
>no specific mention of this area, although the general tenor of his
>would lead one to think that he has the same position.
>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. 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
>right to travel, right to die, right to live where one pleases, right to
>consensual sexual relations with another adult, and the right to
>communication with one's doctor, lawyer and/or minister. [Under the
>of 'new judicial federalism,' the highest state court may recognize a right
>under a state constitution that the Supreme Court does not recognize under
>the national constitution; thus, the state of NY, for example, has
>an unenumerated right to private consensual homosexual relations under its
>state constitution, although the Supreme Court would not do so the same in
>Bowers v. Hardwick.] Eliminate unenumerated rights, and one has eliminated
>awful lot of territory in the battle against an authoritarian state.
>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.
>The real issue should be how to interpret the ninth amendment. There is a
>good case to be made against the broad philosophical 'natural law'
>which does allow the Supreme Court to read almost anything into the
>of unenumerated rights. And the use of the concept of substantive due
>process, the idea that the content or substance of a law does not unfairly
>unreasonably restrict one's life, liberty and/or property, is only slightly
>less open-ended. Certainly its use during the Lochner era, when the Court
>made the protection of laissez-faire capitalism its consitutional doctrine
>the premise that regulation of business was an unconstitutional restraint
>the right of property, demonstrates just how arbitrary its use might be.
>But the Court used neither of these approaches in Roe v. Wade, or in
>establishing a right to association. Rather, it took the approach of
>at the text of the Bill of Rights and 14 Amendment, and seeing what
>unenumerated rights were implicit in that text. The language of the Roe v.
>Wade decision specifically mentions a "penumbra [a zone, an area, a shadow]
>formed by emanations" from other enumerated rights. Thus, insofar as anyone
>could based on an unenumerated right on the text of the Constitution, the
>Court did so in recognizing the right to privacy.
>Leo Casey
>United Federation of Teachers
>260 Park Avenue South
>New York, New York 10010-7272 (212-598-6869)
>Power concedes nothing without a demand.
>It never has, and it never will.
>If there is no struggle, there is no progress.
>Those who profess to favor freedom, and yet deprecate agitation are men who
>want crops without plowing the ground. They want rain without thunder and
>lightning. They want the ocean without the awful roar of its waters.
>-- Frederick Douglass --

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