Judicial activism -- the good and the bad

[heirtothewind]

Judicial activism is a pejorative term used by conservatives for decisions they do not agree with. For liberals, it is applauded as a way for the law to keep pace with ever rapidly changing social values [eg, same-sex marriage] and technological advancements. It has been around since the common law system of Henry II [1154-1189], and is reinforced by the Ninth Amendment to the Constitution. The fundamental constitutional rights to interstate travel, marriage, and privacy [eg, birth control] have been the result of courageous judicial activism as well as desegregation [Brown v Bd of Education].

Please enlighten me on the so-called evils of judicial activism that cannot be addressed on appeal or by legislation.

 

[Mad Scientist]

Judges are supposed to determine if a Law is being implemented properly or if the Law is even applicable. They're NOT supposed to just rule in any way they see fit. They're not supposed to inject their opinion and personal prejudices on Cases and Law.

That's what Jury Nullification is for, which is reserved for We the People, not rogue Activist Judges.

Also, the 9th Amendment is about Rights retained by the People that are not specifically enumerated in the Constitution.

"Error to the Wind" fails again!

 

[DGS49]

The insidious evil of Judicial Activism is the fact that the liberals who practice it KNOW that they are violating the Constitution and (occasionally) the laws they are obliged to protect, but, like professional wrestlers, they must never admit what they are doing.

The Constitution provides a mechanism for change. Intentionally, it was made difficult and tedious, to prevent changing the Basic Law of the Land on the basis of a fad or emotion or anger. The so-called Equal Rights Amendment was just such an ill-considered fad, but the state legislatures rejected it because it potentially created a mountain of unforseen and unforseeable problems.

And yet the process was successfully concluded seventeen times, thus proving that modifying the Constitution is not an insurmountable obstacle to "progress."

There is no Right of Privacy in the Constitution. And the proponents of the Right of Privacy (Judicial Activists) did not significantly rely on the Ninth Amendment when they made it up. They relied on "emanations" and "penumbras" from other components of the Bill of Rights.

But the harmless-sounding, judge-created Right of Privacy is insidious because it is undefinable. And because it is undefineable it can mean ANYTHING THAT THE COURT WANTS IT TO MEAN.

When you speak to any sane person about his or her "right of privacy" they think of eavesdropping in one form or another. And yet the fictitious Constitutional right of privacy has been used to overturn laws against abortion and birth control, laws against homosexual sodomy, and we are now told it can be used to overturn centuries-old laws reserving marriage to a man and a woman. And all of this is based on nothing but smoke.

Let's say that Griswold v Connecticut had been decided the other way, and the people had collectively said, this is B.S., as is their right. They could have approached Congress with petitions to amend the Constitution to keep government out of such private decisionmaking. And the Congress and state legislatures could have considered the question and come up with a solution that had consensus approval of the Peoples' representatives. But by jumping the gun through Judicial Activism, all of these questions have been TAKEN OUT OF THE HANDS of the people and their elected representatives! WTF?

When Liberals such as "heirtothewind" speak of Conservative Judicial Activism, they are in fact referring to cases where Conservative majorities REVERSE ERRONEOUS PRECEDENT cases, bringing them in line with the actual Constitution. This is not Judicial Activism this is judicial rectification, which is proper and appropriate in many cases.

I invite anyone reading this post to cite a single example of an "activist" conservative USSC decision that violates the Constitution.

No hurry, I can wait.