The Cure to Activist Judges
All conservatives and liberals agree: activist judges are bad.
All conservatives and liberals agree: an activist judge is a judge that “makes” the law as opposed to “interprets” the law.
All conservatives agree: Justice X is a bad activist judge, and Justice Y is a good non-activist judge.
All liberals agree: Justice Y is a bad activist judge, and Justice X is a good non-activist judge.
I have a test to identify those who are serious about the problem of judicial activism, and those who simply wish to use the label “activist” against judges they don’t like. I would propose the following Constitutional amendment. Those that truly wish to reduce judicial activism (in all forms) will support it. The demagogues (right and left) will oppose it.
No provision of this Constitution enacted prior to this amendment shall be interpreted as creating either a Constitutionally mandated Right to Privacy, a Constitutionally mandated Right to Substantive Due Process, or a Constitutionally mandated Right of an Individual to Keep and Bear Arms.
Such an amendment does not actually amend the text of the Constitution at all. The phrase Substantive Due Process does not appear in the Constitution. The words private or privacy do not appear in the Constitution. The Second Amendment mentions a right to bear arms, but the language clearly applies only to State Militias, not individuals. Judges who find such words or phrases in the Constitution are not “interpreting” law, they are “making” law.
This amendment is neither for nor against privacy, abortion, economic regulation, or guns. The amendment merely reaffirms that the Constitution leaves these subjects to the political, elected, branches of government.
Will Democrats support this proposed amendment? No.
Will Republicans support this proposed amendment? No.
Is either Party taking a principled position on the subject of activist judges? No.
This raises the final question: Ideally, we want our judges to be above politics. Ideally, it should be possible for a person to be a good, principled, judge in such a way as to be respected by people of all political persuasions. In the current political climate, is it even possible for a principled judge to be liked by both parties?
C E Sutton
All conservatives and liberals agree: an activist judge is a judge that “makes” the law as opposed to “interprets” the law.
All conservatives agree: Justice X is a bad activist judge, and Justice Y is a good non-activist judge.
All liberals agree: Justice Y is a bad activist judge, and Justice X is a good non-activist judge.
I have a test to identify those who are serious about the problem of judicial activism, and those who simply wish to use the label “activist” against judges they don’t like. I would propose the following Constitutional amendment. Those that truly wish to reduce judicial activism (in all forms) will support it. The demagogues (right and left) will oppose it.
No provision of this Constitution enacted prior to this amendment shall be interpreted as creating either a Constitutionally mandated Right to Privacy, a Constitutionally mandated Right to Substantive Due Process, or a Constitutionally mandated Right of an Individual to Keep and Bear Arms.
Such an amendment does not actually amend the text of the Constitution at all. The phrase Substantive Due Process does not appear in the Constitution. The words private or privacy do not appear in the Constitution. The Second Amendment mentions a right to bear arms, but the language clearly applies only to State Militias, not individuals. Judges who find such words or phrases in the Constitution are not “interpreting” law, they are “making” law.
This amendment is neither for nor against privacy, abortion, economic regulation, or guns. The amendment merely reaffirms that the Constitution leaves these subjects to the political, elected, branches of government.
Will Democrats support this proposed amendment? No.
Will Republicans support this proposed amendment? No.
Is either Party taking a principled position on the subject of activist judges? No.
This raises the final question: Ideally, we want our judges to be above politics. Ideally, it should be possible for a person to be a good, principled, judge in such a way as to be respected by people of all political persuasions. In the current political climate, is it even possible for a principled judge to be liked by both parties?
C E Sutton