The End of States Rights

**Pindar** · 06-08-2005, 01:52

Originally Posted by Don Corleone

Alright man, I respect you too much to go much deeper with this. We're going to have to agree to disagree.

Please ignore the sound of the jackboots that will be approaching your door shortly. You will feel only slight pain and soon will have the correct view of things.

**Don Corleone** · 06-08-2005, 01:55

No kidding. As long as beer is still allowed in this New World Order you guys are creating for us...

Honestly, not a legal opinion, but a personal one, do you really think it's such a great idea to concentrate so much power in the hands of so few, who are so detached from the rest of the population up in DC?

**Pindar** · 06-08-2005, 02:12

Originally Posted by Don Corleone

Honestly, not a legal opinion, but a personal one, do you really think it's such a great idea to concentrate so much power in the hands of so few, who are so detached from the rest of the population up in DC?

I don't like arguing with Sicilians. You guys are scary. But I must tell you, Number Three really did suck.

A litigious society is a weakened society.

Concentrated power is always dangerous.

Local control is generally better than its opposite.

But, I make a distinction between stupid law and unjust law or law that is illegitimate.

The Supreme Court upholding this Federal law against medical doobies is an example of stupid law, but I understand the principle.

The Supreme Court creating a right to abortion in 1973 is an example of illegitimate law. The ruling is extra-legislative and therefore has no standing. If the Congress had passed a law allowing abortions my opinion would be different.

Law should be the product of the legislative Branch and thus subject to popular will. This is the touchstone of democracy.

What we've been discussing isn't really a lawyer created issue (accept for the Attorney General). Lawyer problems are typically civil.

(the jackboots will be there presently)

**ichi** · 06-08-2005, 02:03

Conservativism is deferring to the will of the people as determined by their chosen representatives, not appealing to Judicial fiat.

Classical conservatism is opposition to rapid change in governmental and societal institutions. This rapid change might be due to majoritarian impulses empowered through the legislative process.

In a case where rapid change through legislative action was thwarted by judicial review, the courts would be acting 'conservatively', and therefore the quoted definition above is a poor one. It confuses social attitudes with government mechanisms.

ichi

**Pindar** · 06-08-2005, 02:18

Originally Posted by ichi

In a case where rapid change through legislative action was thwarted by judicial review, the courts would be acting 'conservatively', and therefore the quoted definition above is a poor one. It confuses social attitudes with government mechanisms.

ichi

Judicial conservatism does not recongnize Judical Review as a legitimate use of the power of the Court. My basic definition is correct.

**ichi** · 06-08-2005, 06:02

A judge is judicially conservative if he/she comes to a legal conclusion by following the letter of the law as closely as possible. This can include determining that a law contradicts other laws, or that a law is inconsistent with the Constitution.

Judicial activism, or positivism, is the result of a judge creating laws. It is not the result of judges striking down unconstitutional (or otherwise illegal) laws.

For example, if The Congress were to pass a law prohibiting more than 5 people to gather in one place, the court that struck down that law would be judicially conservative. A court that ruled that people must gather together would be judicially active.

ichi

**Xiahou** · 06-08-2005, 10:09

Not entirely on topic, but since someone mentioned it.... I do think the recent decision on cruise ships and the Disabilities Act was out of line- judges creating something that wasn't there before. I could be wrong, because I haven't read the law, but I don't think there's anything in it to suggest it should apply in such a broad manner. I'm with Rush on that one.

**Pindar** · 06-08-2005, 18:28

Originally Posted by ichi

A judge is judicially conservative if he/she comes to a legal conclusion by following the letter of the law as closely as possible. This can include determining that a law contradicts other laws, or that a law is inconsistent with the Constitution.

Judicial activism, or positivism, is the result of a judge creating laws. It is not the result of judges striking down unconstitutional (or otherwise illegal) laws.

For example, if The Congress were to pass a law prohibiting more than 5 people to gather in one place, the court that struck down that law would be judicially conservative. A court that ruled that people must gather together would be judicially active.

ichi

Practical concerns, particularly in regards to case law are one thing, but as far as a basic Jurisprudential ethos is concerned: the above is not quite correct. Judicial activism is the assumption of extra-Constitutional authority by the Court. This includes Court created law or rights, as you noted, but it also includes striking down law. This is not a Constitutionally laid out power of the Court. This is very much tied up with Judicial Review. Courts have assumed this power, but originally it was not so.

Judicial Conservatism takes on many forms. There are: constructionist, statist, economic, libertarian as well as natural law theorists. Some of these can overlap on occasion. The more general conservatism tends toward majoritarian deference and restraint. For Judicial Review opponents this would also include restraint on Constitutionally troubling cases. The primary watchdog responsibility is seen to lie with the people, not the courts.