R
At 06:15 AM 1/18/2002 +0000, you wrote:
>>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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