The Rule of Law – Judicial Activism
Judges steal your rights when they remove issues from democratic process and the reach of voters. This is serious disenfranchisement. In short, judges should interpret law, not make law. Leave lawmaking to the people we can throw out of office. This is what the Constitution specifies: Congress, not courts, makes laws. Right?
I started my Sutherland Institute speech with a math quiz: what is 2 plus 2? Four. Well, what if you really want it to be 3 or 5? Does it hurt anything if you bend the rules a little? I addressed how, today, we live in a political environment where, increasingly, outcomes are unpredictable. The outcomes are up for grabs. If we support the rule of law, we need to do so consistently. We cannot fall into the trap of making 2 plus 2 equal 3 or 5 as we might desire on a specific issue.
Conservatives dislike judicial activism. But do they dislike judicial activism all the time? Conservatives look at cases like Roe v. Wade and say that courts should not make laws. But, is that what we practice?
One commentor asked me to specify how we could do better in the Senate. Okay. Regarding the rule of law and judicial activism, I would improve our representation by consistently opposing judicial activism, not just when it’s convenient. Without that consistency, when a Senator says he opposes judicial activism on one hand but, then, asks the Court to be activist on the other hand, no one takes him seriously. He is ignored.
By way of example, technologists are well-aware of the bill Senator Hatch ran on behalf of Hollywood and the record companies (the INDUCE Act). In the first place, I oppose the bill. While it nominally goes after the problem of copyright piracy, it is so sweeping in its scope that it would outlaw technologies themselves (like MP3 players) and would stifle innovation. Though Hollywood would have benefited from the bill, small businesses (like most of Utah’s emerging technology businesses) would have been harmed. For these reasons, Congress decided not pass the legislation.
In my opinion, that should have ended the issue until the next session. But it didn't.
In a case pending before the Supreme Court, Senator Hatch teamed up with Vermont Senator Patrick Leahy to officially share with the Supreme Court their opinion on matters of judicial activism. They told the Supreme Court that the Ninth Circuit (which typically is not regarded as a great champion of the rule of law as it pertains to judicial activism) had erred when it determined that courts should “leave such matters to Congress.” To a conservative, it is easy to see why the Ninth Circuit did so. The Constitution specifies that copyright is an exclusive, enumerated power of Congress.
Senators Leahy and Hatch, however, argued, “The Court’s role in declaring law is mandatory,” even when Congress is actively looking into the matter. Either we believe in the rule of law or we don't. Even when celebrities and their money come calling, 2 plus 2 can't equal 5.
We can do better in supporting the rule of law and opposing judicial activism. Not just in theory and big speeches, but in practice.
I started my Sutherland Institute speech with a math quiz: what is 2 plus 2? Four. Well, what if you really want it to be 3 or 5? Does it hurt anything if you bend the rules a little? I addressed how, today, we live in a political environment where, increasingly, outcomes are unpredictable. The outcomes are up for grabs. If we support the rule of law, we need to do so consistently. We cannot fall into the trap of making 2 plus 2 equal 3 or 5 as we might desire on a specific issue.
Conservatives dislike judicial activism. But do they dislike judicial activism all the time? Conservatives look at cases like Roe v. Wade and say that courts should not make laws. But, is that what we practice?
One commentor asked me to specify how we could do better in the Senate. Okay. Regarding the rule of law and judicial activism, I would improve our representation by consistently opposing judicial activism, not just when it’s convenient. Without that consistency, when a Senator says he opposes judicial activism on one hand but, then, asks the Court to be activist on the other hand, no one takes him seriously. He is ignored.
By way of example, technologists are well-aware of the bill Senator Hatch ran on behalf of Hollywood and the record companies (the INDUCE Act). In the first place, I oppose the bill. While it nominally goes after the problem of copyright piracy, it is so sweeping in its scope that it would outlaw technologies themselves (like MP3 players) and would stifle innovation. Though Hollywood would have benefited from the bill, small businesses (like most of Utah’s emerging technology businesses) would have been harmed. For these reasons, Congress decided not pass the legislation.
In my opinion, that should have ended the issue until the next session. But it didn't.
In a case pending before the Supreme Court, Senator Hatch teamed up with Vermont Senator Patrick Leahy to officially share with the Supreme Court their opinion on matters of judicial activism. They told the Supreme Court that the Ninth Circuit (which typically is not regarded as a great champion of the rule of law as it pertains to judicial activism) had erred when it determined that courts should “leave such matters to Congress.” To a conservative, it is easy to see why the Ninth Circuit did so. The Constitution specifies that copyright is an exclusive, enumerated power of Congress.
Senators Leahy and Hatch, however, argued, “The Court’s role in declaring law is mandatory,” even when Congress is actively looking into the matter. Either we believe in the rule of law or we don't. Even when celebrities and their money come calling, 2 plus 2 can't equal 5.
We can do better in supporting the rule of law and opposing judicial activism. Not just in theory and big speeches, but in practice.
posted by steve u. at 8/18/2005
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2 Comments:
This is off topic, but if you can get 30 people outside of the President's speech next week in Salt Lake, all with homemade signs saying "we support our president" (go ahead and have them put on a Steve U. button or something and I will send you 30 bucks.
Get 100 people or more and I will vote for you (normally I would wait a long time to decide that...we have until November).
It just boggles my mind that those who support our President don't put their money where their mouth is. Utah was Bush's largest margin and I bet there will be 10 times as many Bush haters outside the event.
Bear with me...I'm confused. When you say judicial activism, what exactly do you mean. Where and when does it occur that judges write a law, then enact it. I thought legislators write laws, they get approved or disapproved by congress. Then, the courts determine whether they are constitutional or not. You talk about Judicial Activism as if the judges write the law instead of just interpret it.
I wonder if you complained about judicial activism when the Bush administration tried to bully the judges into making a new law for "one person" during the Terry Schaivo case. (this happens to be against the law, but I guess you can interpret the constitution any way you want when it is meaningful for you!) The Bushies were looking to coerce and intimidate judges to be activists in their favor...don't you think?
I think what your saying, and what the Bushies are intimating, is that the interpretation of the constitution does not meet the platform of the neo-conservative agenda, and therefore you and others call it judicial activism. What it really is, is someting you don't like. IT IS NOT WRONG...JUST DOESN'T FIT YOUR AGENDA!
There are hundreds of versions of Christianity. Dare you call any of them wrong? Each group interprets the bible the way they see fit, to meet the needs of their congregation. The constitution is no better than the bible in that it is simply a group of written words up for interpretation. Some will focus on the need to convert everyone to their faith of choice. Some will focus on the need to respect other's choices and not pressure for conversion. Some will kill for their belief. Some will 'turn the other cheek'. Each 'ACTS' in their own way. that makes them activists.
Sounds like what your saying is that the courts should be ACTING the way you want them to. So rather than the issue being judicial activism, the issue really is that the courts follow your system of beliefs. I just wanted to get that straight!
Alan
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