Judicial activism is in the eye of the beholder
It’s funny how Judge Vinson’s ruling against the constitutionality of the HCR individual mandate has been called “judicial activism” and “overreaching” by the left and the Obama administration.
Here’s an article that points out that it’s not really “activist” to use the constitution to restrain the expansion of the powers of the federal government. To call it such is quite an feat of verbal gymnastics. “Restraint” might be a better word—unless one thinks the judiciary’s purpose is to automatically rubber stamp acts of the legislative and executive branches of government (as long as both branches are under Democratic control, of course).
RIGHT. Thanks for a gulp of common sense.
So Marbury v. Madison is considered too extreme?
Judicial activism is a ruling that doesn’t conform to one’s philosophy. IMO, the hard left and hard right use this term far too often. However, bravo Judge Vinson. Obamacare is taking the commerce clause to an extreme limit. As many have noted, if the feds can compel a citizen, under the threat of fines and punishment, to buy health insurance they have the power to mandate that you buy a purple and pink two tone car even if you don’t have a drivers license.
The commerce clause and general welfare clause have been abused for well over 100 years to justify all sorts of intrusions into areas where the federal government has no business sticking its long, long nose. Sadly, the 9th and 10th amendments have been ignored by congresses and presidents since nearly the founding of the nation.
“Why don’t you mind your own business cause if you mind your own business you won’t be minding mine.” — Hank Williams
An over reach by the government that opened the flood gates on the commerce clause was the Wickard vs. Filburn Supreme Court case of 1942. An Ohio Farmer, Roscoe Filburn grew more wheat than the government allotted him. He was growing the wheat to feed his chickens and had no intention of selling it. Thus he was not engaged in interstate commerce. The Court held that if he did not grow the wheat, he would have to buy some and that would be commerce. Therefore he was affecting interstate commerce by not buying wheat. He lost the case.
You can see the tie to Obamacare and the argument that not buying insurance affects the system. Blame it on FDR and the progressives.
Mr. Frank,
I had forgot that bit of history, thanks for reminding me. I agree that there is a lot to blame that lays at FDR’s feet. The New Deal was a raw deal and inspired LBJ’s Great Society fisasco. That alone puts a stain on his place in history.
Yet, FDR did one thing right. He was a shrewd CNC in a dire time and assembled a great team, notably George Marshall, to win a global war.
What a relief! Obama back to his old self. I was afraid that the minimal spark of competency displayed in light of the Tuscon shootings may have reflected a trend. My entire grasp on reality now depends on knowing that when I get up in the morning the Obamessiah will be there to give me something to look forward to. Fortunately Tucson turned out to be a passing episode, an anomaly in a record unsullied by common sense. The man who we have come to know and admire as the person who wanted to try KSM in a civilian New York court, set an unmet series of deadlines for Iran to end its nuclear program, close gitmo because it would hurt Al-Qaeda recuriting, blame Bush, appoint lefties, insult friends, give the Queen an Ipod, have cat fights with Fox News and Rush Limbaugh (sorry if I skipping someone’s favorite Obamaclysm, time and space considerations rule) is back and my fear of having woken up in an alternate universe has been alleviated, for the time being.
I was really frightened there for a while.
Some day, the People’s Movement to Save the Constitution that we are now witnessing, thanks to the revolutionary tea party, will be traced to a single event:
The order that we MUST buy curly light bulbs!
Because poor lighting affects our eyes it follows that it effects the way we drive. Driving of course affects interstate commerce which is regulated by the commerce clause. Because those curly light bulbs last longer than simple old bulbs it follows that they are better for driving because the user is less likely to damage his eyes by reading in the dark after the old fashioned type of bulbs burn out. Therefore in the interest of good eyesight it is imperative that everyone use curly bulbs. In the public interest the government, acting responsibly, has the obligation to mandate that curly bulbs and only curly bulbs be purchased by the public.
Anyone who says otherwise is a racist.
Try driving in Chicago today with your *** curly light bulbs and see how far you get…….dude.
just joking, Bob
Therefore automobile headlights must henceforth use curly bulbs.
Automobiles cause global warming and thus are evil with or without curly light bulbs so henceforth thou shalt take green economy high speed rail or stay at home. All hail the new green economy.
As trivial as it sounds, repealing the incandescent bulb ban would be a popular position for Republicans.
Mr. Frank . . .
I agree. We need to find some other easy-to-understand examples of governmental overreach so that liberals can begin to understand the basic problem.
The Obamacare craziness means nothing to most people because the decline of American medicine will happen gradually, and won’t be connected to Obamacare. That’s the evil cleverness of the Axelrod, Emmanuel, Obama, Soros types. They know that most Americans can’t connect dots that take more than a day.
For example, in Chicago, they’re blaming the mayor for shutting down Lake Shore Drive and inconveniencing them. The local dolts have no idea that the local government can’t solve all problems ASAP.
So, as tea partiers (to use a generic term) we all need to work on simple, easy-to-understand examples of why governmental overreach is bad.
The fight for incandescent light bulbs is a start.
Judicial Activism is in the eyes of the beholder.
Roe v Wade is the classic argument that can make an activist out of any judge. Does the person extend to the fetus, or not? If you believe it does, then Roe v Wade is the height of activism. If you believe it does not, then the ruling is not activist because it is based on a history of rulings by other judges that you just don’t like.
The question revolves around whether the judiciary is creating law or not. It would be difficult to legitimately describe the striking of any law as being activist but you can make the case for it by using the precedent of Wickard v Fillburn (and a host of other similar cases). If the court deviates from law and precedent, then it can be claimed to be activist.
Brown v BoE Topeka was another activist ruling that overturned precedent – Plessy v Ferguson. But it can also be safely argued that Plessy v Ferguson was activist in that it made a ruling that should have been left to the legislature. So was it activist to overturn activism?
These are all nice arguments for Law 501, but just a jumbling mish mosh for political activists. I don’t think any of us are going to be surprised at how 8 of these SCOTUS justices are going to rule (though I’d place Sotomajor (sic) out there as a dark horse. It will all come down to Justice Kennedy.
And each political side will decry the activism regardless of the outcome.
Stare decisis is activism?? Christ… that’s real rich, considering the sources of those criticisms. Nary a peep came out for any other cases of “overreach” and “judicial activism”. But I guess that’s supposed to be okay, since it was for issues they approved of (*rolls eyes*).
I’m with my namesake here. It is the job of Congress to pass new laws, and it is the job of judges to rule them constitutional or not. Declaring Obamacare to be unconstitutional is, therefore, not judicial activism — it’s the judiciary doing its job.
Had Obamacare failed to pass Congress, and a judge ordered it enacted anyway — now THAT would be judicial activism.
Personally, I think that Congress doesn’t need to repeal Obamacare. Instead, they should just pass a resolution delaying implementation of Obamacare… until it is read aloud, in full, on the floor of both houses of Congress.
respectfully,
Daniel in Brookline
I actually am a judge and recently was called upon to assess a legislative enactment. I thought the particular law adopted by the legislative branch (intentionally not naming names here) was an absurdly heavy handed way to try to accomplish what was supposedly intended. But I put aside my personal beliefs and upheld the constitutionality of the enactment because that is what the governing precedent required.
Judicial activism ought properly to be defined to be allowing something other than governing case law, settled constitutional principles or the intent of the legislative body to determine the outcome of such an evaluation – irrespective of whether the legislation is upheld or struck down.
Be grateful for your “curley” lightbulbs. Wait till they demand that you use LEDs!
LEDs have some really good uses – but they do _not_ substitute for incandescents. (professional opinion, here)
Halogens are still acceptable under the laws, and while they are not available in all of the traditional forms and wattages, they’re a very good substitute. Just cost more, although if you figure cost/hour, not really more – just you have to pay for it up front.
daniel mentions Plessy. It’s a decision that always bothered me as it ignored the term “persons” in arriving at its dictum.
Someone else mentions Rowe. But the better case is Griswold, is it not?
Brown arrives and fixes Plessy, yet again, does the doctrine established meet original intent? Is it no more necessary to look at regional preferences, and under the legitimate authority of the Commerce Clause, make sure that rules are in place to make sure that no person is treated differently than any other person, merely as a result of moving from one region of the country to another? Sure, these are the rantings of an undergraduate, but at what point do we allow dissassociation from the original document in order to allow outcomes that are perfectly in sync with the original document?
Take this case:
http://www.time.com/time/magazine/article/0,9171,898883,00.html
The most laughable decision in the history of our country. And yet, under the rules of stare decisis the law of the land. Would a return to Originalism be fair? Can we strike the legal concept of penumbras and emanations so that they disappear?
I expect to be Borked for this opinion.
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