Ive pointed out before to some on here that judges like Scalia are hypocrites for talking about judicial activism amongst liberal justices. Ive read so many cases where conservatives like him use "judicial fiats" as some would say, to counter the will of a legislator.

 

 

 

 

Here is a great article on Breyer pointing that the greater threat to democracy is not from the left judges...

 

 

Talking Sense On Court Choices

 

By E. J. Dionne Jr.

Tuesday, November 23, 2004; Page A29

 

Justice Stephen Breyer performed an enormous service for our country last week. He clarified what is at stake in the coming fights over judicial nominations. He made clear why it is important to raise our national argument over court appointments above the level of slogans and campaign speeches.

 

Breyer, in a series of lectures at Harvard University, offered a bold challenge to conservative judicial activism. While he was respectful of his colleagues, Breyer put forward an alternative to the theories of conservative jurists such as Justice Antonin Scalia.

 

Conservative politicians, including President Bush, say that they oppose judges who "legislate from the bench" and that they hope to fill the judiciary with "strict constructionists." That sounds good, because we want democratically elected politicians, not judges, making the crucial decisions. Yet, at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves.

 

That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.

 

This new conservatism is actually a very old conservatism. It marks a return to the time before the mid-1930s when judges struck down all sorts of decent laws -- for example, regulating the number of hours people had to work without overtime pay -- reasoning that such statutes violated contract and property rights. Such rulings denied legislators the ability to resolve social problems and make our society more just. The pre-New Deal judiciary that many conservatives are now trying to restore was the truly "imperial judiciary."

 

The new conservative judicial activism is a greater threat to our democracy than the prospect of some future court striking down the Roe v. Wade decision on abortion. If Roe is lost (and I doubt it will be), states will still be free to pass liberal abortion laws. But if extreme conservative judges limit the authority of Congress and state legislatures to pass environmental, civil rights, labor and consumer laws, our democracy will be less robust, less effective and less just.

 

Breyer's worries about the new trends are rooted in his criticisms of the courts of the late 19th and early 20th centuries. He argues that they "underemphasized the constitutional importance of participation by black citizens in our representative democracy and overemphasized the importance of constitutional protections of property."

 

Later courts -- the New Deal and the Warren courts -- "emphasized the Constitution's protection of the citizen's freedom to participate in government" and thereby expanded "the scope of democratic self-government."

 

Breyer's master concept is "active liberty." He argues that the point of our Constitution is democracy -- to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes."

 

He suggests that justices who focus primarily on the Constitution's text and "the Framers' original expectations narrowly conceived" miss the Founders' basic intention. Their purpose, Breyer says, was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively."

 

Breyer's argument leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them.

 

The power of Breyer's idea of "active liberty" is that it links freedom to democracy. The point of our system of self-government is not simply to protect us from the wrongs government can commit but to give all of us the opportunity to shape what government does.

 

Breyer's lectures, which discuss key cases in detail, deserve broad attention because they lay down an intellectually coherent marker in the critical debates we are about to have over the president's judicial choices. Almost all of the journalism about judicial nominations focuses on filibusters, personal conflicts and partisan advantage. But this battle is so much more important than that.

 

Will judges invoke their own narrow, ideological readings of the Constitution to void progressive legislation? Or will they join Breyer in viewing the Constitution as a framework that "foresees democratically determined solutions, protective of the individual's basic liberties"? The fight over judges is not about politics, narrowly conceived. It is a struggle over what kind of democracy we will have. Breyer has helped us understand that.

since when is george w. bush a conservative?

since when is george w. bush a conservative?

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:plain

 

 

Irregardless, the point people make about liberal judges being activist ignores the reality of judicial activism as a whole. As the article points out, the concept is not new to American jurisprudence. Only lately have some people somehow made it out to be an issue.

since when is george w. bush a conservative?

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:plain

 

 

Irregardless, the point people make about liberal judges being activist ignores the reality of judicial activism as a whole. As the article points out, the concept is not new to American jurisprudence. Only lately have some people somehow made it out to be an issue.

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not disagreeing with that at all, it just irritates me everytime i see people reffering to bush as a conservative.

Since when is FM Yoda? :mischief

Actually what the article argues is conservative judges who are not activist. Maintaining the status quo whether its good or bad is not being an activits. If a new law is passed and struck down almost instantly that isnt true activism. Judicial activism is when a law that has been around for years is all of a sudden declared unconstitutional. However, what is said in the article could present a problem but no more a problem than leftist activism

Actually what the article argues is conservative judges who are not activist. Maintaining the status quo whether its good or bad is not being an activits. If a new law is passed and struck down almost instantly that isnt true activism. Judicial activism is when a law that has been around for years is all of a sudden declared unconstitutional. However, what is said in the article could present a problem but no more a problem than leftist activism

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Judicial activism is legislating from the bench. In its political definition, it is substituting the will of a court over a legislative body. Usually that entails striking down a law based more on personal notions of equity and justice that are loosely derived from common law or constitutional grounds rather than on sound legal principles or sound tests. It usually entails personal political views. Again, thats the definition of the term when others argue against it. Perhaps the best example of judicial activism, whether right or wrong, was the creation of the right to privacy. It is nowhere explicit in the Constitution. But the SC has interpreted the Constitution to claim it exists to strike down a law. An even better example given was the activism of preNew Deal justices who struck down legislated laws based on their own beliefs in stuff like freedom of contract and such existing in the Constitution's due process clause.

 

What they claim to want is strict constructionists. People who dont read notions of equity and such into stuff like the due process clause. People who take a law, see if it is explicitly forbidden by the C, and then base their choice. Of course when it comes to judges striking down legislated laws that arent pro Business, a lot of so called strict constructionists start showing their true colors.

since when is george w. bush a conservative?

 

 

Since Day 1.

since when is george w. bush a conservative?

 

 

Since Day 1.

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Proof that you know nothing of politics

Actually what the article argues is conservative judges who are not activist. Maintaining the status quo whether its good or bad is not being an activits. If a new law is passed and struck down almost instantly that isnt true activism. Judicial activism is when a law that has been around for years is all of a sudden declared unconstitutional. However, what is said in the article could present a problem but no more a problem than leftist activism

624288[/snapback]

Judicial activism is legislating from the bench. In its political definition, it is substituting the will of a court over a legislative body. Usually that entails striking down a law based more on personal notions of equity and justice that are loosely derived from common law or constitutional grounds rather than on sound legal principles or sound tests. It usually entails personal political views. Again, thats the definition of the term when others argue against it. Perhaps the best example of judicial activism, whether right or wrong, was the creation of the right to privacy. It is nowhere explicit in the Constitution. But the SC has interpreted the Constitution to claim it exists to strike down a law. An even better example given was the activism of preNew Deal justices who struck down legislated laws based on their own beliefs in stuff like freedom of contract and such existing in the Constitution's due process clause.

 

What they claim to want is strict constructionists. People who dont read notions of equity and such into stuff like the due process clause. People who take a law, see if it is explicitly forbidden by the C, and then base their choice. Of course when it comes to judges striking down legislated laws that arent pro Business, a lot of so called strict constructionists start showing their true colors.

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Right striking down a new law b/c it does not comply with the constitution is not activism. So striking down news laws passed by states does not constitue activism. If the law isnt pro businesses and is constitutional then it should not be struct down.

since when is george w. bush a conservative?

 

 

Since Day 1.

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Proof that you know nothing of politics

 

Proof that I'm not going to let you guys twist the definition of "conservative" to make it fit whatever you like. G. Dubya is one of you guys whether you like it or not. You've got to take the bitter with the sweet just like liberals do with Ralph Nader.

what's a conservative to you? and how is bush a conservative?

 

if more liberals were like ralph nader, maybe i would actually like some of them.

what's a conservative to you? and how is bush a conservative?

 

 

For starters, he's constantly pushing a backwards social agenda trying to appease religious conservatives. Hundreds of millions of dollars on abstinance education??? Blocking stem-cell research that could help chair-bound people walk again? Attempting to appoint activist judges that would outlaw abortions? This isn't a conservative agenda? The next thing you're going to tell me is that liberals don't support gay rights.

what's a conservative to you? and how is bush a conservative?

 

 

For starters, he's constantly pushing a backwards social agenda trying to appease religious conservatives. Hundreds of millions of dollars on abstinance education??? Blocking stem-cell research that could help chair-bound people walk again? Attempting to appoint activist judges that would outlaw abortions? This isn't a conservative agenda? The next thing you're going to tell me is that liberals don't support gay rights.

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Wow you keep proving my point over and over again. Hes a huge spender, hes increased social spending and is not trying to balance the budget, which is the most conservative thing anyone can do. Many people who dont know much politics think that a conservative is someone who is pushing hard on the social issues and is against gay marriage and abortion. And theres much more too it than that. First of all when we say conservative do we mean Goldwater or Burke? I will assume goldwater b/c he defines american conservatism. You're partially correct in that he is conservative on social issues, but he is very liberal on fiscal issues. The republican creed was a balanced budget and look whats happening. he true conservatives are like gingrich. Increases in spending and unbalanced budget? Bush is a hardcore liberal. But because of the fact that fiscally he is not conservative and he is conservative socially makes him a MODERATE. By the way this isnt an opinion its fact. Read any of goldwater's speeches and please read Edmund Burke. This is necessary for some poeple to learn the differences b/w conservative and liberal. Nader is a liberal b/c hes for a socially controlled economy and hands off social policy making him a liberal. Who's a conservative? Gingrich, Reagan to some extent, Goldwater. The Pope in terms of american politics would be a moderate, liberal fiscal and social conservative. FISCAL, SOCIAL, and FOREIGN need to be reviewed when labeling someone based on ideology. Do not make the idiotic mistake of ignoring fiscal matters

Wow you keep proving my point over and over again. Hes a huge spender, hes increased social spending and is not trying to balance the budget, which is the most conservative thing anyone can do. Many people who dont know much politics think that a conservative is someone who is pushing hard on the social issues and is against gay marriage and abortion. And theres much more too it than that. First of all when we say conservative do we mean Goldwater or Burke? I will assume goldwater b/c he defines american conservatism. You're partially correct in that he is conservative on social issues, but he is very liberal on fiscal issues. The republican creed was a balanced budget and look whats happening. he true conservatives are like gingrich. Increases in spending and unbalanced budget? Bush is a hardcore liberal.

 

How is being responsible with the budget either a "conservative" or a "liberal" agenda? Ronald Reagan was considered a bastion of modern conservatism, yet the guy was as reckless a spender as anyone. At least Bush has the (partial) excuse of fighting a real war. What was Reagan's excuse? Also, Bush has had Republican majorities in the Senate and House for most of his term as president, so now you're going to say the Republican party is fiscally "liberal"??? Give me a break! If proper management was a "conservative" hallmark, then the House and Senate would've never let Bush run amok with the budget in the first place. They never would've pushed through his tax cut without first forcing him to make major spending cuts.

 

 

But because of the fact that fiscally he is not conservative and he is conservative socially makes him a MODERATE. By the way this isnt an opinion its fact.

 

No, it's not a fact. It's your opinion. Poor management of resources has nothing to do with ideology. Many "fiscal conservatives" still think that cutting taxes can balance the budget despite the fact it has been proven wrong time and time again when actually used in practice.

first of all, being a republican does not necessarily make you conservative. actually, i would say most republican members of the senate and congress today are far from being conservatives, which is a very sad thing.

 

like legend say, you need to read a little of burke. i recommend the portable, nice edition of his most important works, you could find it on the net for $10-$15.

 

also, bush is not big on states rights, antoher conservative hallmark. it could even be argued that free trade goes against conservative ideals and he's deffinitely a corporationist, which could also be argue that goes against conservative values.

Thats exactly it republican does not equal conservative. And the republican party is fiscally going towards the more liberal side. A balanced budget is the ideological landmark of a conservative b/c it maintains fiscal responsibility which is what conservatism is all about. Furthermore, The cold war was a much more volatile and dangerous situation than the current one. I think your one of the people on the board that was around for the cold war, and im sure you remember the term mutually assured destruction? And by the way tax cuts DO balance the budget!! But they dont work if you dotn cut spending, both military and social. Thats where bush and reagan have failed. Conservatism according to burke, follows the prescriptive rights doctrine, so military spending is justified under Burke, but not under Hobbes, the classical liberal ,which is where fiscal conservatism mostly stems from

Thats exactly it republican does not equal conservative. And the republican party is fiscally going towards the more liberal side. A balanced budget is the ideological landmark of a conservative b/c it maintains fiscal responsibility which is what conservatism is all about. Furthermore, The cold war was a much more volatile and dangerous situation than the current one. I think your one of the people on the board that was around for the cold war, and im sure you remember the term mutually assured destruction?

 

I do remember. I was there for all of the nuclear war hysteria, but none of that had anything to do with Regan's irresponsibility. He built up a huge military apparatus at a time when anyone in the know knew that the USSR was on its last legs being crushed under the weight of it's stifled economy. Sure, he brought about the inevitable a little ahead of schedule by making them compete in a spending war, but that doesn't excuse the fact that he screwed us in the process.

 

 

And by the way tax cuts DO balance the budget!! But they dont work if you dotn cut spending, both military and social. Thats where bush and reagan have failed.

 

If that's the only way it will work, then it's not tax cuts that are balancing the budget. It's cutting spending to account for a planned reduction in income. Fundamentally, that's like saying John's taking a job that pays him $10,000/year less than his current job, and he's cutting his yearly expenditures by $15,000, so the paycut is responsible for his $5000 gain in savings.

balancing doesn't mean saving.

balancing doesn't mean saving.

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I love these clever one-liners. The fact is you cut spending so that the budget balances. And when theres less things to pay for you also cut the taxes. Thats like saying John pays 1000 a month on mortgage in addition to all his other bills and makes 5000 a month at his job. John finally pays off his house so now every month he pays 1000 dollars less in bills than he used to. Since he is spending less he keeps a 1000 dollars more a month than he did previously. Cutting spending without cutting taxes is like all of a sudden even though john payed off the entire mortgage he still needs to pay 1000 dollars to the mortgage comapny anyway. When theres less to pay for theres no need for taxes to be where they are at so thats when you cut them

OK, fine. Let's cut military spending.

balancing doesn't mean saving.

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I love these clever one-liners. The fact is you cut spending so that the budget balances. And when theres less things to pay for you also cut the taxes. Thats like saying John pays 1000 a month on mortgage in addition to all his other bills and makes 5000 a month at his job. John finally pays off his house so now every month he pays 1000 dollars less in bills than he used to. Since he is spending less he keeps a 1000 dollars more a month than he did previously. Cutting spending without cutting taxes is like all of a sudden even though john payed off the entire mortgage he still needs to pay 1000 dollars to the mortgage comapny anyway. When theres less to pay for theres no need for taxes to be where they are at so thats when you cut them

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that's exactly what i meant when i said it doesn't mean saving. it means keeping the balance as close to 0 at possible.

The reality is more fiscal conservatives today seem to care less about balanced budgets than they do about tax cuts. Maybe the traditional intellectual fiscal conservatve does not like Bush but the bread and butter fiscal conservatve, the ones that talk about big government and all, are mainly those who despise domestic spending, despise taxes, but dont care or care less so about military spending since military spending tends to bring the money back into the hands of the wealthy via the the defense industry. Its the same mechanism by which Reagan operated to undercut domestic spending. Whether or not Hobbes had that viewpoint is not nor does it have to be consistent with the modern bread and butter fiscal conservative Many so called fiscal conservatives didnt exactly punish Bush for his reckless spending did they?

 

In that precise sense Bush is a conservative. If there was some distinction then we would see fiscal conservative who's primary issue is lower taxes and across the board lower spending vehemently disliking Bush. But all Ive seen is teeth grinding with a lessor of two evils viewpoint. That is, they would rather see lower taxes and higher defecits via Bush than higher taxes and balanced budgets via democrats.

 

Like fishfry stated, if one follows your logic on the conservative being balanced budgets and the liberal being unbalanced budgets, then Reagan is a liberal, Tom Delay is a liberal, and funniest of all, Grover Norquist is a liberal. Thats just laughable.

 

 

Add the lower taxes to the heavily social conservative viewpoint and clearly Bush is a conservative.

balancing doesn't mean saving.

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I love these clever one-liners. The fact is you cut spending so that the budget balances. And when theres less things to pay for you also cut the taxes. Thats like saying John pays 1000 a month on mortgage in addition to all his other bills and makes 5000 a month at his job. John finally pays off his house so now every month he pays 1000 dollars less in bills than he used to. Since he is spending less he keeps a 1000 dollars more a month than he did previously. Cutting spending without cutting taxes is like all of a sudden even though john payed off the entire mortgage he still needs to pay 1000 dollars to the mortgage comapny anyway. When theres less to pay for theres no need for taxes to be where they are at so thats when you cut them

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But lets say John's daughter gets a bunch of credits cards in college and John now has to pay those off too..should John just not pay them from his salary and say I should be able to keep my money and my daughter should be able to rack up as much debt as she wants or should John pay his bills?

balancing doesn't mean saving.

626139[/snapback]

 

I love these clever one-liners. The fact is you cut spending so that the budget balances. And when theres less things to pay for you also cut the taxes. Thats like saying John pays 1000 a month on mortgage in addition to all his other bills and makes 5000 a month at his job. John finally pays off his house so now every month he pays 1000 dollars less in bills than he used to. Since he is spending less he keeps a 1000 dollars more a month than he did previously. Cutting spending without cutting taxes is like all of a sudden even though john payed off the entire mortgage he still needs to pay 1000 dollars to the mortgage comapny anyway. When theres less to pay for theres no need for taxes to be where they are at so thats when you cut them

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But lets say John's daughter gets a bunch of credits cards in college and John now has to pay those off too..should John just not pay them from his salary and say I should be able to keep my money and my daughter should be able to rack up as much debt as she wants or should John pay his bills?

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I think johns daughter should pay her bills. The problem is in your analogy tax money for social spending is like a bill that we have to pay, and my argument is it should not be. If this is reversed we can say John is govt and the daughter is an average citizen. John should not have to pay for his daughters fiscal irresponsibilty.