judicial tyranny

Nathan Newman nathan at newman.org
Thu May 17 09:05:04 PDT 2001

----- Original Message ----- From: LeoCasey at aol.com
>But where I differ from them is in their tendency to see law in the tems
Chuck describes
>above. [I think it is only a tendency, which conflicts with other
>countervailing tendencies in their arguments.] Perhaps it is a necessary
>correlate of undergoing a law education and entering into a career as a law
>professional, but I find that they accept too easily the idea that there
>straightforward, relatively unproblematic ways to understand and thus defer
>to legislative language and intent -- what Nathan has described as his
>judicial philosophy of restraint and Justin has called his judicial

First, no one thinkgs that it is unproblematic to understand legislative language and intent; even in the nonconstitutional sphere, judges spend endless time interpreting statutes even when they are not directly overturning them. The question is whether and where courts should be in the business of overturning statutes at all, especially given the immense power they already have in interpreting existing statutes, precisely because of the "problematic" nature of intent.

Leo then notes that he sees the recent Rehnquist decisions as possibly being judicial restraint:

>Take, for example, what Nathan deplores as a recent
>string of conservative "judicial activism" on the part of the Rehnquist
>court: the striking down of federal laws, in whole or in part, involving
>free safety zones around schools, violence against women, age
>and disabled rights...But the federal government's authority to legislate
in these areas, which
>would fall under state and local government jurisdiction in virtually any
'>plain language' reading of the Constitution, rests on a very thin reed --
>the commerce clause.

Of course, that completely ignore the 14th Amendment, which was passed specifically to give the federal government the power (see Section 5) to pass laws to enforce non-discrimination on the states. However, in an act of incredible judicial activism, the 19th century Supreme Court in the Civil Rights Cases essentially gutted the 14th Amendment. It is becuase of that judicial activism that later Congress's relied on the commerce clause to justify anti-discrimination legislation.

The 14th Amendment is not a "thin reed"- we fought a bloody Civil War to get it - yet the tragedy of the First Reconstruction is that despite the passage of progressive desegregation legislation passed by the US Congress after the Civil War, the Supreme Court overturned that legislation and plunged the South into another century of Apartheid.

Judicial activism has been historically one of the PRIME EVIL forces in American society, from Dred Scott through the Civil Rights Cases through Lochner and its progeny.

Folks worry that if Congress violates states rights, what ever will we do to stop them if they act unconstitutionally. Hey, there's an easy answer-- vote them out of office and put in states rights Congresspeople. If folks think Congress passing local gun laws infringes local government, you don't need a Lopez decision- they can be voted out at the next election.

The problem is the same is not true of the Supreme Court.

So why promote its power, except on the narrow issues of democratic rights needed to make sure elections can operate fairly?

-- Nathan Newman

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