>CB: The bourgeoisie will not stop being judicially active because the left
>and working class stop activism through the courts. So, the left must
>remain active through the courts in self defense.
But we can hardly decry the right's judicial activism (i.e., judges making stuff up) if we advocate liberal judges doing likewise. The left should be activist on the grounds, in the streets, in the lobbies, in the legislature, in the agencies. But not in the courts. We should demand that all judges stick to interpreting the law, and not make stuff up.
>
>Also, I find that most who oppose judicial activism or legal activism,
>usually have some program that ultimately depends upon laws in some way.
>Few leftists, except consistent anarchists, conceive of long term ,
>widespread vigilantism as their program. How would the movement's gains be
>maintained without a platform for laws ? Don't laws imply courts ? This
>seems a big gap in all non-anarchist, left , anti-judicial theories.
Not at all. We want the legislature to adopt laws that favor left policies. And we want even right wing judges to feel pressure to respect those laws and not judicially overrule them. That's very different from saying that judges ought to imposer their policy preferences in virtue of their power to interpret the laws. There is a limited sphere of common law judicial power ath both the state and federal level, and within that sphere it makes sense for leftists to argue for judicial legislation that's progressive. For example, on the federal level, antitrust law is almost entirely a judicial creation. There it's quite appropriate to argue for progressibve antitrust policies in court. But not, for example, in discrimination law, which is largely a creature of statute or well-settled constitutional law. I don't mean with regard to the latter tahtw e shouldn't argue for affirmative action, for example. But AA is well-settled con law.
>
>Are Nathan or others proposing abolition of the rule of law ?
>
On the contrary. It is because we, or at least I, support the rule of law taht we oppose judicial activism.
>Lets put it another way. We win the Civil War, a form of non-judicial
>activism. What do we do then ? Not make the abolition of slavery a law in
>the 13th Amendment ?
Making constitutional amendments is classic non-judicial activism.
Not make equal protection the law in the 14th Amendment ? Once you make them
laws, what do you do ? Not seek to enforce the laws in courts ?
>
Once they are law, we ask that the courts enforce them as written, and not according to the judge's policy preferences.
>Lets say we win the union at GM in 1936 ? What do we do, just continue to
>depend on sitdown strikes to defend our victory ?
>
>What's the non-legal activist long term program and strategy ?
>
>
You are confusing the idea of changing the law through political activism with changing it through judicial activism.
jks
>^^^^^^^^
>
>Doug,
> I don't think reactionaries have just used the courts to block political
>
>reforms. Rather, there is a tradition of conservative judicial activism
>which has been rather creative in using the law to enforce ruling class
>ideas. Think of the way a decision like Plessy Vs. Ferguson conjured out
>of
>nothing the idea of "seperate but equal" as a rationale for Jim Crow. (As
>I
>understand it, Jim Crow was itself a novel phenonomeon in the 1870s and
>1880s). Another example would be how conservative justice applied the 14th
>
>amendment to protect corporations, despite the fact that this goes against
>
>the "original intent" of the law. My point is that liberals and leftist
>don't need to masochistically berate themselves for judicial activism,
>when
>in fact the larger history of the U.S. is that the law is usually on the
>side of the ruling class.
> Jeet
>
>
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