From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: U.S. Bill of Rights today
Organization: University of Colorado, Boulder
Date: Mon, 14 Sep 1992 06:08:58 GMT

In article <1992Sep14.003249.30861@m.cs.uiuc.edu> kadie@herodotus.cs.uiuc.edu (Carl M. Kadie) writes:
>>Honestly, I prefer such abuses to judicial activism: It puts the
>>debate into a factual (and somewhat objective) context.
>[...]

>Can you give some examples of what you consider judicial activism?

I can suggest a definition (straight out of a case law text...):
Generally differing to congressional interpertation of the Constitution
when the document is ambiguous (as per "judicial restraint"), but
requiring the government to show a "compelling interest" or the
existance of a "clear and present danger" to justify any law which
affects "prefered freedoms" (i.e. those most critical to involvement
in the political process) particularly when the rights of a "permenent
minority" are concerned. 

My objections are based on the unclear definition of the terms in
quotes, which tend to reflect political biases (the Roe v. Wade ruling,
apparently treated abortion as a "prefered freedom" despite it's
irrelevance to the political process. Property rights are generally
not considered "prefered", despite the fact that freedom of the
press requires owning, or having a political friend own, a newspaper 
to be usefull.) 

Further, the supporters of judicial activism tend to make no effort
understand the bare text, or consider the intended meaning of the
text. Unless the text is crystal clear (the term of office of the
President, for example) or if they doubt the "modern relevance" of
a clause, supporters of activism often apply the above mentioned
principles as a first, not a last resort.

If the concept was applied _only_ after detailed consideration of the
text and original intent had failed to clarify a Constitutional
provision, I would have far fewer objections. Further, if it was
limited by the text and framer's intent (e.g. when the general
idea, but not the exact meaning was known, if activists were limited
by that general idea) I would also have fewer objections.

Another attitude, which seems to go along with judicial activism,
is that of a "constitutional system", a sort of common law
Constitution based loosely on the written document but modified
as the Court and Congress see fit to deal with "modern circumstances."
This attitude, to me, rejects the very idea of a written Constitution
(putting the government's powers and limits in writing so that
"those limits may not be mistaken or forgotten...", as John Marshall
said.) I see this as a reversion to a rule of men, as opposed to a
rule of law.

>(Different people seem to mean different things.) What is your opinion
>of judicial review? 

More or less the same that expressed by Marshall in Marbury v. Madison
(despite my opinions of his objectivity and conduct as Chief Justice...):
The Constitution is the "supreme law of the land", and is a written 
body of law, not subject to alteration by the whims of the government.
Since the job of a court is to apply the law to specific cases, they
inevitably have to interpert any parts of the law that are unclear. 
Since the Constitution is a supreme body of law, the Court must then
apply it to specific cases and (where it isn't totally clear) 
interpert it. I disagree about the Court's _exclusive_ authority
to interpert the Constitution. Further, the above reasoning implies
that the meaning of the Constitution (as a written body of law) should
be constant and unaltered except by amendments. This leads to 
original intent as a tool for interpertation, since other
approaches are too subjective.

>The 9th and 10th Amendments?

(Since I mentioned Roe v. Wade above, I should say a much stronger
case could have been made for abortion on Ninth Amendment grounds.)

As far as I can tell, the intended meaning of the Ninth Amendment
was that the people's rights are not limited to those listed in the
Bill of Rights, nor does the exclusion of a rigth from the Bill of
Rights justify government infringement on such a right. (However, 
the exact extent of the people's rights isn't specified and original
intent is not clear in some cases.)

The Tenth Amendment fairly clearly says the federal government has
_only_ those powers granted by the Constitution. It also is strong
evidence of the intent to strictly limit the powers of the
government. I'd honestly have to say the recent (past 50 years)
interpertation of Article One, Section Eight (especially the
commerce clause) conflict with the intended meaning of the
Tenth Amendment: By modern interpertation, almost _any_ federal
law can be justified. This clearly is incompatable with a government
limited to certain, vital, limited and specified powers.

                                                  Frank Crary
                                                  CU Boulder

Xref: sparky alt.society.civil-liberty:5802 alt.drugs:15684 misc.legal:17117