Constitutional Interpretation - Page 2 - Tilted Forum Project Discussion Community

smooth · 04-18-2006, 07:50 PM

I would prefer not to double post, but I worry that my next response would become lost in the shuffle if I attach it to the above...

The statement you asked me to elaborate, and subsequently paraphrased, means that the notion of individual rights was understood and articulated within a specific social context. It's absolutely correct to claim that prior to a specific period in time and a particular branch of philosophy that the notion of individual rights in Western Europe was simply unimaginable. I don't want to go into how that relates to the discussion at hand, other than to state that any statesman was aware that his writings, debating points, and positions on a particular topic were subject to, and interpenetrated by, the social context within which he operated.

In short, I wouldn't put too much stock in the "beliefs" of politicians caught between an illiterate, rowdy bunch of farmers roaming the countryside, in need of the rule of law rather than rule of the king, and a state-sponsered religion and its adherents they just broke themselves away from as derived from what they said and wrote to the people paying attention to them.

The_Jazz · 04-19-2006, 04:23 AM

Quote:

Originally Posted by smooth

The_Jazz didn't answer my question, and in fact, appeared to me to be pontification.
At no point did I suggest that common persons had any say in the legistlative process, a strawman he "rebutted." It's obvious that ratification of the Bill of Rights would follow the same process as other amendments, but that's not what I asked.

Quote:

Originally Posted by smooth

How many people ratified it? (speaking of the Bill of Rights)

Quote:

Originally Posted by The_Jazz

For the record, the Bill of Rights had to pass through the same requirements as any other amendment(s) to the Constitution. Generally speaking, the States ratified the BoR at the same time as they did the Constitution. The "ratifiers" were the same folks who ratified the Constitution and did NOT include "the people" but rather their elected officials in the various state legistatures.

Smooth, please reread what was posted. I answered a direct question with a direct answer. How many people ratified it? The members of the legislatures who ratified the Constitution at the same time. If you want actual numbers, I suppose that I could try to find the actual head count from all 13 state legislatures, but to call my answer a "strawman" is a little insulting, especially when it didn't come down on either side of the issue. My answer clarified a particular point of history that you didn't seem to know. How in the world is that pontification?

roachboy · 04-19-2006, 08:39 AM

the intent question is a problem.
you cannot determine it. not really: generally claims about intent are nothing more than projection.
the sources of the problem are obvious enough: 1) that the constitution is written and so made up of sentences that exceed the intent of the writers--they are not unrelated to intent, but intent dissolves into that which exceeds it. a banal example--an email or this post--you can read it and speculate about my intent in writing it, but you have no way of knowing whether your speculations link to anything. you can generate an interpretation of what is written that would be informed by a project of delimiting intent, but the result is still an interpretation that would be evaluated as any other interpretation would be--as such it s a move within the interpretive game, not a meta-move that puts a stop to that game on the basis of claims presumed definitive.

second: in the particular case of the constitution, the material that you would have to have recourse to in order to make any claim about intent at all is sporadic/incomplete--and this deliberately. you would think that there would be more complete and detailed accounts of the processes of fabrication had the intent been to route interpretations of the document through the intent of the framers themselves. it would seem to me that any move rooted in the (untenable, absurd) notion of "original intent" woudl effectively raise the proceedings of the consitutional convention to the status of meta-law. that is not and was not the way in which the american system of law has functioned since 1787. it is a wholesale reworking of the tradition, passed off as an attempt to rescue it.

and since all claims concerning intent are projections at one level or another, claims about intent are nothing more than moves in the game of political power as it currently exists. as such, teh criteria for evaluating such claims are not the content of the arguments but the politics of the folk who make them. because the claims are nothing more than a device elaborated as a function of a conflict over power.

another way: legal language is an aspect of normal language and changes along with it. like it or not. you can't simply wish this away. reverting to claims concerning the "precision and vagueness" of the constitution is simply a recapitulation of the same arguments about intent at another level.

dksuddeth · 04-19-2006, 10:19 AM

Quote:

Originally Posted by roachboy

the intent question is a problem.
you cannot determine it. not really: generally claims about intent are nothing more than projection.
the sources of the problem are obvious enough: 1) that the constitution is written and so made up of sentences that exceed the intent of the writers--they are not unrelated to intent, but intent dissolves into that which exceeds it. a banal example--an email or this post--you can read it and speculate about my intent in writing it, but you have no way of knowing whether your speculations link to anything. you can generate an interpretation of what is written that would be informed by a project of delimiting intent, but the result is still an interpretation that would be evaluated as any other interpretation would be--as such it s a move within the interpretive game, not a meta-move that puts a stop to that game on the basis of claims presumed definitive.

second: in the particular case of the constitution, the material that you would have to have recourse to in order to make any claim about intent at all is sporadic/incomplete--and this deliberately. you would think that there would be more complete and detailed accounts of the processes of fabrication had the intent been to route interpretations of the document through the intent of the framers themselves. it would seem to me that any move rooted in the (untenable, absurd) notion of "original intent" woudl effectively raise the proceedings of the consitutional convention to the status of meta-law. that is not and was not the way in which the american system of law has functioned since 1787. it is a wholesale reworking of the tradition, passed off as an attempt to rescue it.

and since all claims concerning intent are projections at one level or another, claims about intent are nothing more than moves in the game of political power as it currently exists. as such, teh criteria for evaluating such claims are not the content of the arguments but the politics of the folk who make them. because the claims are nothing more than a device elaborated as a function of a conflict over power.

another way: legal language is an aspect of normal language and changes along with it. like it or not. you can't simply wish this away. reverting to claims concerning the "precision and vagueness" of the constitution is simply a recapitulation of the same arguments about intent at another level.

So, in regards to constitutional interpretation when you try to determine 'original intent', why can't one look at the recorded notes of the virginia convention and the federalist papers? would that not satisfy 'original intent' if there intent is plainly stated?

roachboy · 04-19-2006, 04:16 PM

dk: no, it wouldn't.
not in the way you would prefer.

besides, if you want to play the intent game, why are there so few documents, and such incomplete documentation, concerning the constitutional convention itself if the idea was to generate a future situation in which the proceedings would be set up as THE regulative interpretive framework within which the constitutional system itself operated? my understanding is that the idea at the time was that the proceedings NOT be used in the way you propose. the idea was that what mattered was the document as frame for the unfolding/development/interpretation of law--which necessarily involves an unfolding/development/interpretation of the frame.
the partial records of the convention, the federalist papers ARE NOT LAW.
i hope that is clear enough.

your position on this is simply untenable conceptually, untenable methodologically, and what is more undesirable legally and politically.

what it seems to me you really want to do is throw out the entire american common law system and replace it with a version of the civil law tradition--but the fetishism of the constitution around which this desire seems to hinge prevents you from saying as much. so you go for a parallel type of system that you can pretend is consistent with what exists. it isnt. yours is a radical position, one that is connected to a politics that you are not particularly forthcoming about, except when it comes to guns. even then, you prefer to present your positions on guns as if they were not embedded in a wider context. this makes little sense to me, but that's fine.

dksuddeth · 04-19-2006, 04:30 PM

Quote:

Originally Posted by roachboy

dk: no, it wouldn't.
not in the way you would prefer.

besides, if you want to play the intent game, why are there so few documents, and such incomplete documentation, concerning the constitutional convention itself if the idea was to generate a future situation in which the proceedings would be set up as THE regulative interpretive framework within which the constitutional system itself operated? my understanding is that the idea at the time was that the proceedings NOT be used in the way you propose. the idea was that what mattered was the document as frame for the unfolding/development/interpretation of law--which necessarily involves an unfolding/development/interpretation of the frame.
the partial records of the convention, the federalist papers ARE NOT LAW.
i hope that is clear enough.

I am perfectly willing to acknowledge that after all of the debates concerning the constitution that the authors of said document truly didn't intend to have all individuals have the right to bear arms if someone can show me ANY, ONE SINGLE SHRED, of proof that that argument exists. I know that in politics, it's a matter of practice for the lawmakers to say one thing to the people and then write a law that is completely opposite, but there usually ends up leaving some sort of trail to show that.

Quote:

Originally Posted by roachboy

your position on this is simply untenable conceptually, untenable methodologically, and what is more undesirable legally and politically.

Please show me how.

Quote:

Originally Posted by roachboy

what it seems to me you really want to do is throw out the entire american common law system and replace it with a version of the civil law tradition--but the fetishism of the constitution around which this desire seems to hinge prevents you from saying as much. so you go for a parallel type of system that you can pretend is consistent with what exists. it isnt. yours is a radical position, one that is connected to a politics that you are not particularly forthcoming about, except when it comes to guns. even then, you prefer to present your positions on guns as if they were not embedded in a wider context. this makes little sense to me, but that's fine.

color me confused, I have no idea what you tried to say with this. although I do recognize that you paint an opinion that isn't in line with yours with the word 'radical'.

roachboy · 04-21-2006, 08:34 AM

dk--i havent much time at the moment---

you cant determine my intent in writing this sentence.

you could rake through the piles of paper i drag around with me living space to living space, you could talk to folk who know me in 3-d world and you still coudlnt do it.
you could speculate about it.
you could use your assumptions to try to generate statements that would read as though they accounted for intent as a way of accounting for cause--but the links you would make are entirely a function of your assumptions.
and i am alive now--so far as i can tell at least.
if you cant work out intent in a messageboard post by a contemporary of yours, how can you possibly imagine that you'd be able to do it relative to the framers of the constitution, who have been dead 200 years or so?
arguments about intent are speculative.
(and they are usually uninteresting.)

more to say but no time to say it--gotta go.

roachboy · 04-23-2006, 07:51 AM

addendum:

think of the sentence above as a kind of barrier--meaning can be worked out based on the sequence of words, grammatical functions, etc.: your interpretation is based on the sentence and moves out from it in time--it follows the sentence, refers back to it.

intent would obtain on the far side of the barrier, would be a question of psychological situation at the point of composition (which you cannot really even delimit for yourself as you write a response, if you do)--you could be thinking any number of things--this argument is wrong; roachboy is an asshole (this is a quasi-universal, so often goes without saying in discussion with me); the afternoon is wide open, i would like to barbeque; this chair is falling apart.....intent could be impacted by networks of associations,--it is a difficult state ot even formalize, much less know about, much less know about with any certainty, uch less use as a guide for interpretation.

statements about intent are statements about meaning.
statements about intent are a type of statement about meaning.
they are moves within a game of interpretation of meaning.
for this type of statement to operate as you would prefer it to, there would have to be some kind of agreement about the meaning of this register of statement.
everything that happened within that register would follow from this agreement, and would constitute somethng of a little genre of interpretation, if you took all such statements together.
the conceit of this genre would be that when you talk about meaning, you can somehow thereby talk about intent.
it seems to me that, if you can talk about intent at all, it is in a trivial way--the statement exists and so reflects some level of intent, simply because the fact of the statement indicates something about an intentional state that precedes it--but past that there is nowhere to go, except into the space opened by a community of interpretations that conflate meaning and intent.

sentences are formalized results of actions that exceed the actions.
sentences are like any other work in that the processes behind them tend to drop away, are replaced by the implications of the results, become a space of projection.

within a hypothetical genre of interpretations that conflate meaning and intent, what would be determinate is not the content of the interpretive statements but who controls the genre rules.
it seems to me that this is incoherent except as a political action, one that presumably is rooted mostly in anxiety about the changing meaning of terms in the second amendment.
if you cannot rely upon the existing communities that operate within the game of interpreting the constitution to not dissolve the 18th century notion of milita into something else, for example, then the counter proposal is to create a new interpretive community that would be geared around fixing such definitions in order to prevent this type of interpretation.
it is the same game as that which you oppose, except that folk like you would see their political interests as being advanced by it.
there is no difference in kind between the type of interpretation you propose (based on intent) and that which curently exists (based on meaning).

dksuddeth · 04-24-2006, 08:15 AM

When does constitutional interpretation equal judicial activism?

When does constitutional interpretation equal judicial tyranny?

roachboy · 04-24-2006, 12:40 PM

Quote:

When does constitutional interpretation equal judicial activism?

When does constitutional interpretation equal judicial tyranny?

when you decide for political reasons of your own to call them such.
neither category has anything like a definite content (judicial activism, tyranny) in this context.
oresumably, for you, dk, any legal action taht endangered your right to have as many guns as you like would be both.

btw: there are conversations about constitutional interpretations happening in two different threads at the moment--both seem to bear on the same questions--i am not sure but what they should maybe be reorganized or consolidated? it'd be good to have the elements in one place, i think.

ubertuber · 04-24-2006, 01:08 PM

I'll take a look at that and consolidate as possible tonight. Thanks for pointing that out.

dksuddeth · 04-24-2006, 01:39 PM

Quote:

Originally Posted by roachboy

when you decide for political reasons of your own to call them such.
neither category has anything like a definite content (judicial activism, tyranny) in this context.

I would have to disagree immensely. Judicial activism can, and should, be defined as a judicial decision that is one that you don't like, but isn't in direct opposition to the constitution or a specific law that is within constitutional boundaries.

Judicial tyranny should be defined as any judicial decision that is in direct opposition to the constitution or declaring constitutionality of a law that is obviously not constitutional.

Quote:

Originally Posted by roachboy

oresumably, for you, dk, any legal action taht endangered your right to have as many guns as you like would be both.

While that would certainly be the case, I am also referring to such things like Kelo v. new london which is in direct opposition to the 5th amendment, or 'sneak and peek' search warrants which are a complete violation of the 4th amendment. Even the most recent 9th circuit decision regarding the 1st amendment regarding a student wearing an anti-gay shirt with a decision that the 3rd circuit, facing a similar issue, ruled as unconstitutional.

When does it become judicial tyranny and what do we do about it?

Mojo_PeiPei · 04-24-2006, 01:50 PM

Judicial Activism should be defined as something that is bad and is in opposition to the constitution. As a means of democracy as defined and laid out in our constitution, the legislature is the body that implements law, it's a means of accountability to the people. Really judicial activism is something that strips the right of the people/electorate as Judges are not accountable to the public. The sole function of the Judiciary is to regulate law, they interpret, they are not supposed to implement law.

roachboy · 04-24-2006, 02:21 PM

but what constitutes activism or tyrrany is not independent of arguments about interpretations, arguments about whether these interpretations are or are not within the frame of the constitution.
both dk and mojo above act as though there is some agreement on the criteria that would be brought to bear on a given interpretation or series of interpretation independent of argument.

face it: the term "judicial activism" has been floated by a sector of the american right. there is no agreement about its signifieds outside that context.
generally, it is advanced along with arguments from some kind of strict constructionism--which at its most absurd is of a piece with the notion of "original intent"
the two claims work together in that the latter provides the criteria for making the former operative (that is, the charge of "activism")---in the cases where all elements of the argument are in place, then the claim can be evaluated coherently because you have both the claim of "activism" and the "relative to what..."

separating the two and treating "judicial activism" as though it has an independent content seem to me unworkable.

Mojo_PeiPei · 04-24-2006, 02:47 PM

There doesn't have to be an agreement on the criteria, I say there is no room for agreement as it is plainly defined. Law that comes about as a means of judicial implementation is activism, and is unconstitutional.

You can say it has been floated around by the "right", it's true, but it is based off the notion that the "left" and their beloved notion of "will of the people" goes out the window when it comes to issues such as homosexual marriage, abortion, and the phantom constitutional construct of separation of church and State. It's really amusing how the will of the people doesn't so much matter in these cases and the only means of forcing the lefts agenda has been at the behest of the courts and not the legislature as laid out by the constitution.

What is so absurd to you about the notion of constructionism and original intent? Is that really more laughable of modern justices and jurors pointing to foreign law tas a means of constitutional relevance when it is predated by hundreds of years?

Maybe I'm offbase here, I've never had much luck in regards to reading your posts or deciphering/getting information from them, but it seems clear to me that the notion of strict constructionism as a means of curbing judicial activism is independent, it is all simple really, and it has nothing to do with political lines as you try and make; if the courts decision leaves the grounds of interpretation, and is a means of implementation that it is activism and is unconstitutional.

dksuddeth · 04-24-2006, 03:28 PM

considering that 'original intent' is something that groups of people like to obfuscate by saying that plain text of quotes from the debaters of the constitution is not indicative of intent in regards to the ratified text of the constitution and then try to read something in to the constitution that doesn't exist, or didn't exist back then, but now is perfectly right because it coincides with their political ideology. That is judicial tyranny.

smooth · 04-24-2006, 04:51 PM

Quote:

Originally Posted by dksuddeth

Smooth, correct me if i'm wrong, but you seem to be attempting to make the claim that the half dozen different people I quoted as 'framers', declaring that all freemen have the natural right to bear arms, is the opposite of what those who 'ratified' the constitution and later ratified the first ten amendments specifically protecting individual rights was nothing but a sham presented to the 'rowdy farmers' making them believe they had these rights, when in fact that is not the case.

Is this what you are attempting to say?

Well, to be honest, I didn't see you quote half a dozen different people on this subject. And of the quotes of yours I did read, none of them seemed to state explicitly what you interpret from them and they aren't from legislative meetings so I'm not sure what bearing they would or should have on interpreting the law as it was intended.

Aside from that, I'm not claiming that anyone necessarily thought opposite of one another. and I'm not suggesting a mere two sides to this issue. I don't even link the 2nd amendment to anything at all about the farmers I was referring to, other than to suggest that the people arguing over what to include in our early documents were thinking in a particular milliue and referenced things they felt were most salient, not necessarily what would secure one's freedom on an objective level. we don't for example see any statements about the deity granted right to read...yet we see the right to freedom of the press, and guns, to take two examples of things the people and their representatives thought had been essential to securing their right to exist as an autonomous nation-state.

I'm simply trying to point out that you are melding a lot of people into a one-mindset mentality, as if you could do so from the votes cast or various statements made and recorded. This is perhaps the best example I can give you:

you, roachboy, jazz, and I are sitting around a table. you suggest that god gave us a right and responsibility to arm ourselves. roachboy thinks perhaps it's a good idea to maintain personal weapons, but not have a standing army. he also thinks in his head, maybe even says as much, that the concept of an active god is silly and so 16th century. I'd rather we have a standing army of sorts, but I see I'm already outvoted, unless jazz is on my side and we've stalemated. rather than risk it, I suggest we word our new legislation to point to the states' responsibilities to maintain order in regards to private ownership of weapons. I don't really care how it's done, I'm agnostic on the whole god thing, but I really think we should make sure we've got some way to protect our new society. jazz doesn't like what any of us are saying for various reasons and leaves the room.

so we write our stuff up and send it over to our colleugues to all vote on. jazz actually votes with us because we agreed to help him out with his free speech thingy...

a couple hundred years roll by and some people start bunting ideas around on an internet board. one of them happens to dig up an op-ed you wrote in the new york times about god giving everyone a right to own weapons. they find a reply by me to you that sure, we all know "god" works in mysterious ways and all that, but it's our responsibility to defend ourselves. he aint going to do it, so whatever else happens, we better maintain a militia. someone notices that all four of us, you, me, roachboy, and jazz voted for the right and assumes that means we all believed in a god given right to have weapons.

3 of us didn't, one of us did. but we all agreed on the end product...what gives?
well, for starters, there isn't anything in the amendment about god giving us that right. so whatever. we can debate on who thought what at the time, but it's all just meandering ramblings. the only meat we have to go on is the stuff that was codified.

now there's lots of valid reasons to argue for private ownership of weapons
there's lots of valid reasons to argue for ownership of weapons to be understood as a defense of the state affair, as opposed to a walk about town affair or keeping a sawed off shotty, tech9, or sks for sport shooting

but there isn't much need to argue over whether the people writing the documents believed in a god-given right to such weapons. as if that makes the claim even more legitimate. it is either legit or it;s not to my mind. you either have a good argument or you don't. it's either valid or invalid, for my purposes. and arguing from tradition or an appeal to higher authority doesn't state your case for you. and as if that wasn't enough, enter all the issues roachboy was trying to lay out...and hopefully my example illuminates why we both think you run into all sorts of problems when trying to decipher meaning of legislative manuevers in the manner you are trying to do.

I know it's not the middle of the night, but I'm just popping in from my supposed studying for comps so I shouldn't even be here. hopefully this quick and dirty post clarifies what I was trying to get at when I stopped by earlier.

my opposition to your argument stemmed from the way in which you laid it out, not some fundamental disagreement I have with private gun ownership (because I don't have one, for one thing).

dksuddeth · 04-24-2006, 05:17 PM

smooth, as round about and story telling as your post was.....I found it enlightening, informative, entertaining, and thought provoking.

I see what you were saying. thanks. great post.

roachboy · 04-24-2006, 08:42 PM

i am not saying that "judicial activism" is the only political category that has become associated with the actions of judges who occupy a particular political position--i am saying that it is not different in kind.

or: it is also a political category.

political categories are evaluated like any other argument is--you know, how they fit with the information that they are supposed to speak to. so when thinking about the "activism" of a generation of judges, say, in the context of claims to the will of the people, you evaluate them by a sense of fit--that is, you evaluate them politically.
you talk about "what is there" in the constitution in a context that you know entails a kind of pretext for cutting back law that you dont like politically (think roe v. wade) because the premise undercuts the legitimacy of precedent/interpretations advanced under the rubric of "liberal" judges or "judicial activists"--that is political.

or: the idea that it makes sense to assume that a document like the constitution is static at the levels of meaning is also a political choice.

say there were sometime lots of strict constructionist judges.
if the language in the constitution is not stable at the level of meanings (you know, not wholly unstable, but not wholly stable either) then it will effectively be declared stable in particular areas by strict constructionist style judges as a function of cases and, of course, relevant political considerations. this because no-one is in a position to simply change the rules all at once, you see--so change would be piecemeal, like alzheimer's fading in. these declarations will be the prerogative of certain people, who will be in the main not elected, not accountable to any democratic process---they will also engage in judicial activism. maybe radical acts of judicial activism, because declaring elements of the constitution to be static just seems like a radical thing to do.

but maybe i'm wrong and that would not be judicial activism or tyranny or whatever.
they're your terms, so you get to decide.

ubertuber · 04-24-2006, 09:07 PM

Quote:

Originally Posted by Mojo_PeiPei

Judicial Activism should be defined as something that is bad...

I don't even know where to start with this one... Mojo - can you clarify? Something that is bad is terrifyingly vague, unless you are just saying that judicial activism is inherently bad, whatever it may actually be. I have a feeling you meant something more than this though.

I get the point about courts being limited to affirming or striking down laws, but I don't think that it is particularly accurate. For instance the Supreme Court has long used "tests" like the Miller test for obscenity or the Lemon test for religious establishment. What could these possibly represent other than methods of defining the application of law - certainly beyond the mere affirmation/disqualification that you seem to feel is the proper limit of the court's power.

Extending your view of legislative pre-eminence a bit further (and tell me if I'm off, please - I'm not trying to put words in anyone's mouth), I'm concerned about checks and balances. The legislature makes laws, and the courts rule on them - affirming, striking down, limiting, and defining acceptable applications (as I mentioned above). The courts do not write new laws. Period. To limit the courts' power further is to extend the power of the legislature over the court - which to me seems inappropriate. The court is SUPPOSED to be a step removed from the will of the people. The proper limit that the legislature can impose is in confirmation, impeachment, and amendment. Other than these steps, the laws are intended to be in the hands of the executive and judicial branches.

I don't think I've seen a charge of judicial activism yet that amounts to meaning more than "bad because I disagree with it". Kelo v. New London isn't judicial activism as much as it is (possibly) just a bad finding. The case came to the Supreme Court properly, they ruled, and we don't like it. That's not activism, it's just disagreeable.

ubertuber · 04-24-2006, 09:50 PM

Quote:

Originally Posted by roachboy

btw: there are conversations about constitutional interpretations happening in two different threads at the moment--both seem to bear on the same questions--i am not sure but what they should maybe be reorganized or consolidated? it'd be good to have the elements in one place, i think.

No one is in trouble - I'm just writing in yellow to captivate you (if only for a second).

The 2nd amendment thread had a substantial threadjack (unintentional) that ended squarely on this topic. I took the posts in question and copied them here. They exist in both places, since they did grow organically out of the 2nd Amendment discussion. However, to the extent possible, let's try to address the intended thread topics in the appropriate places. So constitutional interpretation/intent issues stay here, 2nd amendment stuff goes there.

This thread looks a bit strange now, but I think benefit of consolidating our conversation will be worth the confusion.

Mojo_PeiPei · 04-24-2006, 10:06 PM

Activism is bad as DK on the last page, seemed to brush it off as something we don't like but is ultimately ok; I'm stating it is not good, I think you might have been reading too much into it.

As for the rest of it...
I think you answered your own question with your "defining the application of law" comment. Your examples really only apply to questions of government controversy, such as the lemon test. I'll agree that the judiciary can define the application of law, but that is bound by jurisdiction and how it relates to the government being a party to a controversy, something that is affirmed by word in the constitution. Defining application isn't the same as straight up rendering a decision that has no constitutional basis and it having pro-active repercussions as standing law. I think we pretty much agree on everything here, I think it is just a subjective pretext that we are both working with. Your subjective approach is that activism is derived from a subjective approach; my subjective approach is that it isn't.

smooth · 04-24-2006, 11:18 PM

Quote:

Originally Posted by roachboy

i dont see anything important or interesting in the arguments for anything like strict construction. i see thinly veiled political posturing. i think the american common law system is among the few things that this system got more or less right. that of course doesnt mean that the application of elements within that system are hunky dory (the system itself is shot through with extra-legal features that, in the end, are determinant of usage)--but the logic of the system itself seems functional.

I hope I don't mischaracterize your position, or what I've learned...

as for strict constructionist...I don't think it's at as much odds with common law as you are thinking.

our legal roots, grounded in common law, are also grounded in a particular strain of legal reasoning: 'natural law'

this coincides with the growth of our nation, when American jurists, influenced by Locke and other political philosophers, were trying to establish the nation-state. Locke naturalized things like the economy (capitalism, the market, private property), the State, and etc.

this produces a hodge-podge of legal rulings, depending on which philosophies a particular jurist adhered to. (Mensch referred to this pre-classical era as "conceptual mush")

in the classical period (1885-1920) we have jurists turning to the Constitution as a source of law due to the need of a formal way of arriving at legal outcomes. C.C. Langdell argued that legal reasoning was like a science. this becomes legal formalism

this form of reasoning holds to the belief that law is law and society is society. think of law as a box, and social norms/values should and do not enter into that box; law is objective; law's tenets can and must be found within law; one should and must not look outside that box of reasoning for the premises of law; in order to learn how to "think like a lawyer" one must study case after case after case until one learns, inductively, what the logic of law is and how it operates

central tenet of formalism is that guilt is established through intent. intent is, as we've learned in debates about 2nd amendment, hate crime, for example, is difficult and sometimes impossible to ascertain.

as we developed from an agrarian society where we each took care of our own basic needs to a complex society where we each rely on one another for certain roles, a way of balancing intent with liability becomes a real problem...

if we were to hold people strictly liable (no demonstration of intent necessary), who would develop anything if they were assumed to be strictly liable?
what about strictly non-liable? who would consume if producers were never liable for anything? how could I eat a tomato if I couldn't be assured, or at least feel comfortable, knowing that the producer is developing them safely?

(cf. Weber's formal rationality and it's intersection with the growth of our version of capitalism; and now you can begin to see in our law, as well, as necessary prerequisite)

we start to see some very troubling logic in rulings in the early 20th centuray. logic that awakens the minds of critical legal scholars... (where incicentally, elphalba, we witness some extremely "activist" judicial rulings, but from the conservative , or laissez-faire side of the aisle, particularly in rulings like Coppage v. Kansas 1915)

20's to 30's
nation is struggling, stammering with a whole slew of social ills and cracks in the edifice of unbridled capitalism...and this paradigm shift occurs, and along with it this new way of looking at things through a prism of social sciences, and in particular American sociology.

and so we have Holmes and Pound writing from Harvard about how to integrate social science into law--how to balance intent with liability, how to practice substantive law. that the box between society and law is not so neat and tidy. that we ought to have a "sociological jurisprudence"

out of their writings springs legal realism movement changing the face of law
they demonstrate the fact that "rights" are not a priori. private property is not to be "found" in law, but is created in action. heavily influenced by pragmatism (not the get things done commonsensical notion of the word now, but the philisophical meaning that meaning springs from action)
the recognition that one's rights to engage in business sometimes, perhaps often, contradicts one's rights to private property (we are witnessing this contradiction right now in the debate over eminent domain)
the logic of legal formalism is contradictory, they conclude

but we have a problem...
now we are allowing men to think and read social interaction into the law
Hitler and Mussolini and the rise of fascism make it very threatening that law may not be autonomous from society
ruling by law is much more palatable than ruling by men. the "realist challenge" dies down in the influx of formalism values to ensure the validity and security of a formal rational legal system

scholars manage to argue successfully that althogh the laws may not be unbiased, the process certainly is (the process school). we can trust the system, if not necessarily the content within it.

by and large, our american jurisprudence continues to adhere to the basic assumptions of formalism

I wanted to get this out so people could see our trajectory of legal reasoning.
and also because it struck me that roachboy was wondering what the allure of strict constructionism would be (or maybe not, but it looked as though)
that is reinforces laissez-faire capitalism, the growth of our nation and economy, our particular form of personal values of autonomy and etc, and also how to maintain status quo (the function of law, one could argue)

(but also while maintaining social order, perhaps failing to address social injustice or social ills/needs)
maybe I'll have to come back and tie pieces in but perhaps this is hopeful...

smooth · 04-24-2006, 11:33 PM

Quote:

Originally Posted by Elphaba

Roachboy, I agree that informal interpretation of the constitution creates a legal precedent that guides further views of a specific law. I also agree that the current cultural "wars" are making use of the "judicial activism" term in the attempt to reverse long standing legal precedent. I believe any justice of SCOTUS will find himself a minority if he attempts to reverse law based upon precedent.

I have been trying to understand in historical terms vs. the current cultural climate in how SCOTUS has come to interpret the Constitution in ways that are not clearly spelled out by the written document.

For example, I do not understand how the precedent of interstate commerce was legally applied to a farmer that was raising crops for family consumption. You cannot get more "intrastate" than that. But for good or ill, it has become a long standing precedent and will not be reversed.

MoJo, thank you for your post. I have read it several times looking for an answer to my question of privacy rights. What I find there are proscriptions forbidding the states from entering agreements with outside agencies or forming their own monitary system. The relationship of the state with the individual isn't addressed here that I can determine.

Folks, I am just not getting "it" and fear that I am going to be viewed as stubborn if I continue asking the same question. Thanks to all that have attempted to clear up my confusion, but I believe I am a distraction to the discussion at this point.

I may be able to clarify some of the sticking points you're encountering in one post (maybe my last one helps, as well):

the right to privacy was "read into" the constitution to understand how the constitution could include a right to be free from government intrusion in certain affairs (personal effects, press as thought/expression, right to contract between individuals, for example)

the words used were the recognition of a "penumbra" of rights. a hazy sort of aura that must exist, must according to the reasoning, if those rights were to be held valid. that is, while the constitution doesn't explicitly argue for a right to privacy, it must be assumed if one is to have a right to be free in his own home from government intrusion, for instance.

interstate v. intrastate
yes, in agrarian society farmers were growing for their own
but as we moved into industrial society, that legal logic runs into trouble

if a farmer in one state must deal with state laws regulating tobacco, for example, then he will have to deal with his own state laws, and all of the states his commodity will pass through to get to New York smokers.
so while it looks confusing when a peanut farmer grows peanuts to eat, how does that become interstate, but not when we recognize that other peanut farmers were shipping their stuffs to other states.

this recognition may come in handy: SCOTUS decisions, although they appear to be handling individual disputes, are not meant to be observed or understood as such. disputes are handled in the various state courts. supreme decisions are reserved for items of social import, not policy. which is one of the reasons they only take the cases they want to, without political retribution (as article 3 judges) or explanation of their decisions to take or not take an individual case. they wait until sufficient discord between the states exists to warrant a social clarification.

dksuddeth · 04-25-2006, 12:28 AM

Quote:

Originally Posted by Mojo_PeiPei

Activism is bad as DK on the last page, seemed to brush it off as something we don't like but is ultimately ok; I'm stating it is not good, I think you might have been reading too much into it.

I didn't say activism was ok, I said that activism is a move/decision that, while not in conflict or in opposition of the constitution, isn't within the constitution. It's like saying that such and such this is not illegal because it's not in the constitution or written in the law, therefore it's legal. We don't like it, but it's perfectly legal, therefore we call it activism.

Tyranny, on the other hand, IS illegal and unconstitutional because it is a ruling that is in direct opposition with the stated intent or terms/laws of the constitution.

ubertuber · 04-25-2006, 02:46 AM

Quote:

Originally Posted by dksuddeth

I didn't say activism was ok, I said that activism is a move/decision that, while not in conflict or in opposition of the constitution, isn't within the constitution. It's like saying that such and such this is not illegal because it's not in the constitution or written in the law, therefore it's legal. We don't like it, but it's perfectly legal, therefore we call it activism.

I'd actually call that ruling in accordance with the 10th amendment. Maybe I'm misunderstanding you though.

dksuddeth · 04-25-2006, 02:56 AM

Quote:

Originally Posted by ubertuber

I'd actually call that ruling in accordance with the 10th amendment. Maybe I'm misunderstanding you though.

yes and no. I hate to use this example, but abortion is an example of activism. Using the 'right to privacy' claim to make abortion legal is not against the constitution, per se, it makes it activism by making a law within the judiciary where they have no power to do so. A decision liked by some, disliked by others. Does it violate the 10th? Yes and no, in that it takes away the states ability to decide that by invoking the 4th and 14th.

The_Jazz · 04-25-2006, 05:30 AM

I think that dksuddeth has a pretty accurate interpretation of activism. Its neither a good nor bad thing, just like any tool. To take it a step farther, I think that most strict interpretationists dislike activism because it hems them in and forces them to follow the activists. Strict interpertation not only requires that judges follow what is in the Constitution but also how that wording has been interpreted in the past (precendents). Every single constitutional question, no matter how minute, requires interpretation of the document in every single instance. There's no way around it. Once an activist judge sets the prescendent and it is upheld, interpretationalist judges have to accept that prescedent as the law of the land for as much as it is relevent in whatever case is before them. A judge who believes that there's no constitutional protection for abortion (regardless of her personal thoughts on the issue), has to follow the Roe v. Wade decision when faced with something like the South Dakota suits that are brewing.

Judges can't just give a yes-or-no answer on most of these issues. They have to explain themselves and show why their decision is the correct one and what it means to the rest of the world. That happens regardless of how much of an activist a judge may or may not be.

To say that activism is only a tool used by politically liberal judges or the Left as a whole is incredibly myopic. The first truely activist decisions were all heavily conservative (Dred Scott, anyone?), and there's been a real resurgence of conservative activists on the bench in recent years. They are more prevalent in state courts than federal, but they are out there doing their thing.

04-18-2006, 07:50 PM	#41 (permalink)
smooth Junkie Location: Right here	I would prefer not to double post, but I worry that my next response would become lost in the shuffle if I attach it to the above... The statement you asked me to elaborate, and subsequently paraphrased, means that the notion of individual rights was understood and articulated within a specific social context. It's absolutely correct to claim that prior to a specific period in time and a particular branch of philosophy that the notion of individual rights in Western Europe was simply unimaginable. I don't want to go into how that relates to the discussion at hand, other than to state that any statesman was aware that his writings, debating points, and positions on a particular topic were subject to, and interpenetrated by, the social context within which he operated. In short, I wouldn't put too much stock in the "beliefs" of politicians caught between an illiterate, rowdy bunch of farmers roaming the countryside, in need of the rule of law rather than rule of the king, and a state-sponsered religion and its adherents they just broke themselves away from as derived from what they said and wrote to the people paying attention to them. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

04-19-2006, 08:39 AM	#43 (permalink)
roachboy Super Moderator Location: essex ma	the intent question is a problem. you cannot determine it. not really: generally claims about intent are nothing more than projection. the sources of the problem are obvious enough: 1) that the constitution is written and so made up of sentences that exceed the intent of the writers--they are not unrelated to intent, but intent dissolves into that which exceeds it. a banal example--an email or this post--you can read it and speculate about my intent in writing it, but you have no way of knowing whether your speculations link to anything. you can generate an interpretation of what is written that would be informed by a project of delimiting intent, but the result is still an interpretation that would be evaluated as any other interpretation would be--as such it s a move within the interpretive game, not a meta-move that puts a stop to that game on the basis of claims presumed definitive. second: in the particular case of the constitution, the material that you would have to have recourse to in order to make any claim about intent at all is sporadic/incomplete--and this deliberately. you would think that there would be more complete and detailed accounts of the processes of fabrication had the intent been to route interpretations of the document through the intent of the framers themselves. it would seem to me that any move rooted in the (untenable, absurd) notion of "original intent" woudl effectively raise the proceedings of the consitutional convention to the status of meta-law. that is not and was not the way in which the american system of law has functioned since 1787. it is a wholesale reworking of the tradition, passed off as an attempt to rescue it. and since all claims concerning intent are projections at one level or another, claims about intent are nothing more than moves in the game of political power as it currently exists. as such, teh criteria for evaluating such claims are not the content of the arguments but the politics of the folk who make them. because the claims are nothing more than a device elaborated as a function of a conflict over power. another way: legal language is an aspect of normal language and changes along with it. like it or not. you can't simply wish this away. reverting to claims concerning the "precision and vagueness" of the constitution is simply a recapitulation of the same arguments about intent at another level. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-19-2006, 04:16 PM	#45 (permalink)
roachboy Super Moderator Location: essex ma	dk: no, it wouldn't. not in the way you would prefer. besides, if you want to play the intent game, why are there so few documents, and such incomplete documentation, concerning the constitutional convention itself if the idea was to generate a future situation in which the proceedings would be set up as THE regulative interpretive framework within which the constitutional system itself operated? my understanding is that the idea at the time was that the proceedings NOT be used in the way you propose. the idea was that what mattered was the document as frame for the unfolding/development/interpretation of law--which necessarily involves an unfolding/development/interpretation of the frame. the partial records of the convention, the federalist papers ARE NOT LAW. i hope that is clear enough. your position on this is simply untenable conceptually, untenable methodologically, and what is more undesirable legally and politically. what it seems to me you really want to do is throw out the entire american common law system and replace it with a version of the civil law tradition--but the fetishism of the constitution around which this desire seems to hinge prevents you from saying as much. so you go for a parallel type of system that you can pretend is consistent with what exists. it isnt. yours is a radical position, one that is connected to a politics that you are not particularly forthcoming about, except when it comes to guns. even then, you prefer to present your positions on guns as if they were not embedded in a wider context. this makes little sense to me, but that's fine. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-21-2006, 08:34 AM	#47 (permalink)
roachboy Super Moderator Location: essex ma	dk--i havent much time at the moment--- you cant determine my intent in writing this sentence. you could rake through the piles of paper i drag around with me living space to living space, you could talk to folk who know me in 3-d world and you still coudlnt do it. you could speculate about it. you could use your assumptions to try to generate statements that would read as though they accounted for intent as a way of accounting for cause--but the links you would make are entirely a function of your assumptions. and i am alive now--so far as i can tell at least. if you cant work out intent in a messageboard post by a contemporary of yours, how can you possibly imagine that you'd be able to do it relative to the framers of the constitution, who have been dead 200 years or so? arguments about intent are speculative. (and they are usually uninteresting.) more to say but no time to say it--gotta go. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-23-2006, 07:51 AM	#48 (permalink)
roachboy Super Moderator Location: essex ma	addendum: think of the sentence above as a kind of barrier--meaning can be worked out based on the sequence of words, grammatical functions, etc.: your interpretation is based on the sentence and moves out from it in time--it follows the sentence, refers back to it. intent would obtain on the far side of the barrier, would be a question of psychological situation at the point of composition (which you cannot really even delimit for yourself as you write a response, if you do)--you could be thinking any number of things--this argument is wrong; roachboy is an asshole (this is a quasi-universal, so often goes without saying in discussion with me); the afternoon is wide open, i would like to barbeque; this chair is falling apart.....intent could be impacted by networks of associations,--it is a difficult state ot even formalize, much less know about, much less know about with any certainty, uch less use as a guide for interpretation. statements about intent are statements about meaning. statements about intent are a type of statement about meaning. they are moves within a game of interpretation of meaning. for this type of statement to operate as you would prefer it to, there would have to be some kind of agreement about the meaning of this register of statement. everything that happened within that register would follow from this agreement, and would constitute somethng of a little genre of interpretation, if you took all such statements together. the conceit of this genre would be that when you talk about meaning, you can somehow thereby talk about intent. it seems to me that, if you can talk about intent at all, it is in a trivial way--the statement exists and so reflects some level of intent, simply because the fact of the statement indicates something about an intentional state that precedes it--but past that there is nowhere to go, except into the space opened by a community of interpretations that conflate meaning and intent. sentences are formalized results of actions that exceed the actions. sentences are like any other work in that the processes behind them tend to drop away, are replaced by the implications of the results, become a space of projection. within a hypothetical genre of interpretations that conflate meaning and intent, what would be determinate is not the content of the interpretive statements but who controls the genre rules. it seems to me that this is incoherent except as a political action, one that presumably is rooted mostly in anxiety about the changing meaning of terms in the second amendment. if you cannot rely upon the existing communities that operate within the game of interpreting the constitution to not dissolve the 18th century notion of milita into something else, for example, then the counter proposal is to create a new interpretive community that would be geared around fixing such definitions in order to prevent this type of interpretation. it is the same game as that which you oppose, except that folk like you would see their political interests as being advanced by it. there is no difference in kind between the type of interpretation you propose (based on intent) and that which curently exists (based on meaning). __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-24-2006, 08:15 AM	#49 (permalink)
dksuddeth Junkie Location: bedford, tx	When does constitutional interpretation equal judicial activism? When does constitutional interpretation equal judicial tyranny? __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

04-24-2006, 01:08 PM	#51 (permalink)
ubertuber spudly Location: Ellay	I'll take a look at that and consolidate as possible tonight. Thanks for pointing that out. __________________ Cogito ergo spud -- I think, therefore I yam

04-24-2006, 01:50 PM	#53 (permalink)
Mojo_PeiPei Kiss of Death Location: Perpetual wind and sorrow	Judicial Activism should be defined as something that is bad and is in opposition to the constitution. As a means of democracy as defined and laid out in our constitution, the legislature is the body that implements law, it's a means of accountability to the people. Really judicial activism is something that strips the right of the people/electorate as Judges are not accountable to the public. The sole function of the Judiciary is to regulate law, they interpret, they are not supposed to implement law. __________________ To win a war you must serve no master but your ambition.

04-24-2006, 02:21 PM	#54 (permalink)
roachboy Super Moderator Location: essex ma	but what constitutes activism or tyrrany is not independent of arguments about interpretations, arguments about whether these interpretations are or are not within the frame of the constitution. both dk and mojo above act as though there is some agreement on the criteria that would be brought to bear on a given interpretation or series of interpretation independent of argument. face it: the term "judicial activism" has been floated by a sector of the american right. there is no agreement about its signifieds outside that context. generally, it is advanced along with arguments from some kind of strict constructionism--which at its most absurd is of a piece with the notion of "original intent" the two claims work together in that the latter provides the criteria for making the former operative (that is, the charge of "activism")---in the cases where all elements of the argument are in place, then the claim can be evaluated coherently because you have both the claim of "activism" and the "relative to what..." separating the two and treating "judicial activism" as though it has an independent content seem to me unworkable. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-24-2006, 02:47 PM	#55 (permalink)
Mojo_PeiPei Kiss of Death Location: Perpetual wind and sorrow	There doesn't have to be an agreement on the criteria, I say there is no room for agreement as it is plainly defined. Law that comes about as a means of judicial implementation is activism, and is unconstitutional. You can say it has been floated around by the "right", it's true, but it is based off the notion that the "left" and their beloved notion of "will of the people" goes out the window when it comes to issues such as homosexual marriage, abortion, and the phantom constitutional construct of separation of church and State. It's really amusing how the will of the people doesn't so much matter in these cases and the only means of forcing the lefts agenda has been at the behest of the courts and not the legislature as laid out by the constitution. What is so absurd to you about the notion of constructionism and original intent? Is that really more laughable of modern justices and jurors pointing to foreign law tas a means of constitutional relevance when it is predated by hundreds of years? Maybe I'm offbase here, I've never had much luck in regards to reading your posts or deciphering/getting information from them, but it seems clear to me that the notion of strict constructionism as a means of curbing judicial activism is independent, it is all simple really, and it has nothing to do with political lines as you try and make; if the courts decision leaves the grounds of interpretation, and is a means of implementation that it is activism and is unconstitutional. __________________ To win a war you must serve no master but your ambition.

04-24-2006, 03:28 PM	#56 (permalink)
dksuddeth Junkie Location: bedford, tx	considering that 'original intent' is something that groups of people like to obfuscate by saying that plain text of quotes from the debaters of the constitution is not indicative of intent in regards to the ratified text of the constitution and then try to read something in to the constitution that doesn't exist, or didn't exist back then, but now is perfectly right because it coincides with their political ideology. That is judicial tyranny. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

04-24-2006, 05:17 PM	#58 (permalink)
dksuddeth Junkie Location: bedford, tx	smooth, as round about and story telling as your post was.....I found it enlightening, informative, entertaining, and thought provoking. I see what you were saying. thanks. great post. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

04-24-2006, 08:42 PM	#59 (permalink)
roachboy Super Moderator Location: essex ma	i am not saying that "judicial activism" is the only political category that has become associated with the actions of judges who occupy a particular political position--i am saying that it is not different in kind. or: it is also a political category. political categories are evaluated like any other argument is--you know, how they fit with the information that they are supposed to speak to. so when thinking about the "activism" of a generation of judges, say, in the context of claims to the will of the people, you evaluate them by a sense of fit--that is, you evaluate them politically. you talk about "what is there" in the constitution in a context that you know entails a kind of pretext for cutting back law that you dont like politically (think roe v. wade) because the premise undercuts the legitimacy of precedent/interpretations advanced under the rubric of "liberal" judges or "judicial activists"--that is political. or: the idea that it makes sense to assume that a document like the constitution is static at the levels of meaning is also a political choice. say there were sometime lots of strict constructionist judges. if the language in the constitution is not stable at the level of meanings (you know, not wholly unstable, but not wholly stable either) then it will effectively be declared stable in particular areas by strict constructionist style judges as a function of cases and, of course, relevant political considerations. this because no-one is in a position to simply change the rules all at once, you see--so change would be piecemeal, like alzheimer's fading in. these declarations will be the prerogative of certain people, who will be in the main not elected, not accountable to any democratic process---they will also engage in judicial activism. maybe radical acts of judicial activism, because declaring elements of the constitution to be static just seems like a radical thing to do. but maybe i'm wrong and that would not be judicial activism or tyranny or whatever. they're your terms, so you get to decide. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-24-2006, 10:06 PM	#62 (permalink)
Mojo_PeiPei Kiss of Death Location: Perpetual wind and sorrow	Activism is bad as DK on the last page, seemed to brush it off as something we don't like but is ultimately ok; I'm stating it is not good, I think you might have been reading too much into it. As for the rest of it... I think you answered your own question with your "defining the application of law" comment. Your examples really only apply to questions of government controversy, such as the lemon test. I'll agree that the judiciary can define the application of law, but that is bound by jurisdiction and how it relates to the government being a party to a controversy, something that is affirmed by word in the constitution. Defining application isn't the same as straight up rendering a decision that has no constitutional basis and it having pro-active repercussions as standing law. I think we pretty much agree on everything here, I think it is just a subjective pretext that we are both working with. Your subjective approach is that activism is derived from a subjective approach; my subjective approach is that it isn't. __________________ To win a war you must serve no master but your ambition.

04-25-2006, 05:30 AM	#68 (permalink)
The_Jazz Asshole Administrator Location: Chicago	I think that dksuddeth has a pretty accurate interpretation of activism. Its neither a good nor bad thing, just like any tool. To take it a step farther, I think that most strict interpretationists dislike activism because it hems them in and forces them to follow the activists. Strict interpertation not only requires that judges follow what is in the Constitution but also how that wording has been interpreted in the past (precendents). Every single constitutional question, no matter how minute, requires interpretation of the document in every single instance. There's no way around it. Once an activist judge sets the prescendent and it is upheld, interpretationalist judges have to accept that prescedent as the law of the land for as much as it is relevent in whatever case is before them. A judge who believes that there's no constitutional protection for abortion (regardless of her personal thoughts on the issue), has to follow the Roe v. Wade decision when faced with something like the South Dakota suits that are brewing. Judges can't just give a yes-or-no answer on most of these issues. They have to explain themselves and show why their decision is the correct one and what it means to the rest of the world. That happens regardless of how much of an activist a judge may or may not be. To say that activism is only a tool used by politically liberal judges or the Left as a whole is incredibly myopic. The first truely activist decisions were all heavily conservative (Dred Scott, anyone?), and there's been a real resurgence of conservative activists on the bench in recent years. They are more prevalent in state courts than federal, but they are out there doing their thing. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo