dksuddeth

Something that was said in another thread got me to thinking about how constitutional law and cases get dealt with by the judiciary and I always wondered what people really think in regards to the topics in the subject.

I've heard many times by many people that the constitution must be interpreted as it relates to the current time period and socio-political situations and I wonder if these same people would willingly accept that ideology when it concerned parts of the constitution or bill of rights that they cared more about than others?

Stare decisis, or to stand by things decided, is a policy that is almost always adhered to by our courts, generally for good reason as it prevents extremely radical change that could cause more upheaval than it benefits the people, however, with the few times that stare decisis is abandoned in order to overturn previous decisions, say for example roe v. wade or brown v. board of education, would people here consider that a flagrant case of judicial activism/tyranny on all cases, some they care about, or wouldn't care at all?

judicial activism/tyranny. This has been discussed in the past on a few threads, but my personal opinion is that activism from the judiciary is nothing more than a term used to define a decision that you didn't like, though falls within the constitutional framework, whereas judicial tyranny is obvious subversion of the constitution and undermines the power of the people by limiting rights and freedoms or outright doing away with them. A classic example of judicial tyranny would be wickard v. filburn, where the USSC suddenly decided that a farmer growing his own wheat, on his own land, for his own consumption falls under congressional regulation via the commerce clause, no matter how slight the intrastate commerce is. Would people readily accept these kinds of decisions or produce a tremendous outcry like that of kelo v. new london?

If people readily accept these constantly changing rules of law by the judiciary, do we really have a set in stone constitution or is it nothing more than the rights we have at any given time as decided by 9 judges?

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loquitur

Great topic, dksuddeth. I'll have something pretty detailed to post but I'm at work now, so it'll have to wait until I get home. But until then give this some thought: why is the US Constitution <i>written</i>?

dksuddeth

cool, I look forward to reading it

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guy44

I agree that judicial activism is a term used for political purposes, and nothing more.

Basically, I think its just a constant struggle. Of course stare decisis is important - if previous rulings don't stand, than how can anyone know what the law of the land is? On the other hand, if precedent isn't overturned, how can anything ever change in the light of changing times, newly developing science and technology, etc.?

There isn't one right answer (well, interpreting the Constitution to mean only what the Founders intended is actually dead wrong) and that is the point: it's this slow, steady struggle that allows our laws to change with the times - but not too quickly.

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Ustwo

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?" - Antonin Gregory Scalia

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dksuddeth

why is it dead wrong? thats part of the reason for this thread. I want to know WHY people think that the founding document of this nations governmental powers should be reinterpreted as times change.

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Baraka_Guru

I think this is because the Founding Fathers had a different nation in mind than most Americans do today. I imagine most of what they outlined in the Constitution was intended for an audience of Caucasian, land-owning men. That it can be applied to almost anyone (taking the Amendments into account, of course) is a bit of a consequence of a democracy. It took 80 years to amend for racial suffrage and 130 years for women's suffrage. The Founding Fathers were long dead by then. As human understanding develops, so too should a constitution.

I think the key here is to focus on the differences between activist judges making "quick fixes" and the need for continuing a practice of constitutional amendments.

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dksuddeth

this is exactly my point, insofar as changing the constitution. The framers put in a very specific way to change the constitution, so why not use that instead of handpicking lefty or righty judges to 'reinterpret' the constitution to mean what they want it to mean for an agenda?

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"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."

jorgelito

Ooh, great thread DK.
Couldn't one make the argument that the amendments are defacto and dejure "reinterpretations"? I think in theory I am ok with it and also, that is democracy (at least to me). The rule of law should stand. Why I am ok with it is because I feel like the amendments are a great way to adapt with the times. The first 10 amendments came so quickly after the Constitution that it seems to me to be proof that the Founding Fathers understood and realized the importance of amendments (as a "reinterpretation"). To me, regardless of selfish reasons or landowning 40 year old white dudes, it is precisely this "understanding of the importance of amendments (as reinterpretations) to the Constitution as the guiding document for our new nation" that is so amazing and so wise.

Your "judicial tyranny" is tricky though. While I would be against Roe v Wade, I support Brown v Board of Ed. I guess it's too subjective. But maybe that is also the "genius" of the balance of powers You have legislative action and also judicial action. Although it can be messy, it still gives us, in my opinion, better balance.

Plan9

I think the balance is between the number of moving pieces we want (big brother government vs. civil liberties) against how fast we want to move the machine (stagnant stability or dynamic uncertainty).

Great thread.

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joshbaumgartner

I'm going to try and answer what your asking. It's a great question. I agree that 'judicial activism' is a term used politically to oppose disliked decisions. I think perhaps 'judicial tyranny,' though less often used, percentage-wise is probably used as often to do the same thing, just with a stronger sentiment.

I think stare decisis is a good principle, because it means that when a case is heard, there can be a sense that people can rely on that decision when choosing their path going forward. I think though, the main value of it is that every court case doesn't have to become a re-hashing of every legal arguement along the way. If there was no such thing, then every criminal case, you could potentially have the whole constitutionality of the general principles of say, the evidence-gathering process, up for argument. Instead, once the courts have made it clear that a particular method is acceptable or not, then police departments know how to conduct themselves with the knowledge that if they play by the rules they can expect to bring the evidence to trial. In individual cases, if there are exceptions, the specific details can be argued as they relate to the case at hand. Naturally, defenses will often try anything to get an acquittal, but if you couldn't even rely on the standing judgments, then can you imagine the mess we would have? Also, if I'm not mistaken, isn't this part of the reason why the court, once it decides on a case, is not able to simply be overwhelmed by a flood of similar cases in the hope that through volume, a side will get a win in at least some of them?

On the other hand, I do think that the courts do owe past decisions a rethink every once in a while. This is especially true when changes in our society and developments in areas bring into question a decision's relevance.

What I do not like to see though, is the development of a culture in which every politically charged judgment is retried based on the changing composure of the court. I don't want to see as soon as the forces on one side of a debate think they have an advantage based on judicial appointments, to resubmit a case for reconsideration. If you want a decision revisited, the old rule of needing new evidence, or a substantial change in the environment upon which the decision was predicated, is a good rule.