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A Consistent Ethic of Judicial Restraint?

According to Dionne, the proper battle that should animate the next Court confirmation process is the danger of right-wing judicial activism. I agree that some of our libertarian friends have pushed for the Court to do too much, but to say the least that danger is fading now. I can even agree that declaring the Voting Rights Act unconstitutional seems like judicial activism. But shouldn't we challenge E.J. to add that left-wing judicial activism (which we, beginning with ROE, have discussed on NLT often) is at least at bad, and the new danger is it will now get much worse?
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To what degree is the idea of a living constitution consistent with any idea of judicial restraint?

I can even agree that declaring the Voting Rights Act unconstitutional seems like judicial activism.

You are too generous to Dionne.

And what the heck is "right-wing judicial activism"? The term is an oxymoron.

btw, link does not work.

I hope your forthright battle is well fought. the link doesnt work!

The link works well. I guess the living constitution would be compatible with judicial restraint if you believed that the evolutionary animation doesn't flow from the Court. Right-wing judicial activism isn't an oxymoron unless you say that MY activism is always based on the true meaning of the Constitution and so really isn't activism at all.

Are you suggesting that fighting to return our government to its Constitution is 'activism' similar to attempts to totally abandon the Constitution? Right wing and left wing only matter to someone who has no principles and lacks moral convictions-call me a Sith, but there is right and wrong, and the right thing to do is work as hard as possible as a court to return our country to its legitimate and just position as agreed on by our Founding Fathers, and to be as active as possible in that pursuit.

Like bad breath, it is always someone else who has an ideology, not me. I have the truth!. It is always someone else who practices judicial activism, not the right wing. Of course they just write their ideology into the founding itself, then endless cite it in the name of judicial restraint.

Would our Founders be considered right or left wing today?

Answering that will put this into better perspective.

Right-wing judicial activism isn't an oxymoron unless you say that MY activism is always based on the true meaning of the Constitution and so really isn't activism at all.

Right wing judical activism IS an oxymoron if people on the right say that judges have no business making policy decision, and that "activism" is properly confined to getting ones way via the legislative process.

Which is exactly what people on the right do say.

Not that I'd expect anybody at Ashbrook to be very familiar with what people on the right believe.

But I'm curious as to how this sudden concern with judical activism fits in with your Jaffaite outlook. Is it not that case that you believe that judges should in fact be "activists" in the sevice of the "natural law"?

Like bad breath, it is always someone else who has an ideology, not me.

Good old ren chimes in with his warmed-over Marxist perspective. But at least he has some excuse, being in fact a warmed-over Marxist.

Lawler has no such defense. Or ... does he?

John M, you do not know what you are talking about here. This concern of Lawler's is neither recent nor Jaffaite. Not that I fully accept your characterization of what is Jaffaite in this context anyhow.


If E.J. Dionne knows what he is talking about, (which seems an iffy proposition--note his ham-handed use of the term "strict constructionist") he is pretty disingenous in the way he talks. He's going to look us in the face and equate what really may be hard call on current CRA applicability with the likes of Roe v. Wade, Lawrence v. Texas and Roper v. Simmons? He's going to deny that Democratic judicial icons like Brennan have spelled out chapter and verse about how it is that the Constitution properly evolves via SC interpretation? Conservatives and moderates should respond, "To talk about such a serious issue in this way is almost as insulting as to lying to our faces. Either a) defend living constitutionalist interpretation practices openly and vigorously, b) offer an alternative to those practices, or c) stay silent. Do not give us this niggling tu quoque stuff, lest you wish us to regard you as little but a Democratic sound-bite operative."

Finally, the only useful definition of "judicial activism" is the one offered by Matt Franck a few years back: "the wrongful use of judicial review." That defintion shows you the deep limitations the term "judicial activism," limitations which I think Peter is alluding to here. For the only measure of "activism" that liberals and conservatives could really agree upon is HOW MANY LAWS ARE OVERTURNED. This is why it is a next-to-useless term for the debate we need, because given a hypothetical bad Congress/Prez that passed lots of unconstitutional laws, a hypothetical good SC would have to be very "activist," and a hypothetical evil SC would contrariwise be very "non-activist." I.e, there is also the wrongful non-use of judicial review to consider.

In sum, conservatives cannot rhetorically OWN the word "activism." I understand its populist appeal and its basic point, but if conservatives try to regularly use it as shorthand they will get more and more obscuring "you do it too" responses from liberals, and more and more abusurd "let's have a tradeoff b/t the two types of activism" responses from faux moderates. Conservatives have to engage in actual debate about interpretational philosophy, and about the key cases in which liberal SC justices have utilized living constitutionalist interpretation. If you think the struggle here is defined by the term "activist," you are accepting the idea that the struggle can be quantified. Genuine interpretation and fidelity cannot be.

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