Judicial Activism; (The heart of the issue)

If any of you are doubting what the judicial fight is all about, go read the link above, it contains a monograph of Thomas Sowells thesis written in 1989, and states clearly that judges are clearly out of bounds in some of their decisions.

Justice Scalia on judicial activists' concept of the "living Constitution":

My Constitution is a very flexible Constitution. You think the death penalty is a good idea. Persuade your fellow citizens and adopt it. You think it's a bad idea. Persuade them the other way and eliminate it.

You want a right to abortion? Create it the way most rights are created in a democratic society: Persuade your fellow citizens it's a good idea and enact it. You want the opposite? Persuade them the other way.

That's flexibility.

But to read either result into the Constitution is not to produce flexibility, it is to produce what a Constitution is designed to produce: rigidity.

Abortion, for example, is off stage. It's off the democratic stage. There's not use debating it. It is unconstitutional -- I mean, prohibiting it is unconstitutional. No use debating it any more.

Now and forever, coast to coast, until -- I guess until we amend the Constitution, which is a difficult thing.

So, for whatever reason you might like the living Constitution, don't like it because it provides flexibility. That's not the name of the game.

And that's the crux of it...proponents of a "living, breathing Constitution" don't really want a flexible Constitution that changes with "society's evolving standards." They want judges to enact their preferred policies...policies that those proponents could not enact through the democratic process...because they are contrary to society's standards...indeed, they want to use the Constitution (by pretending to "interpret it to read into it something it doesn't say) to legitimize their undemocratic policy enactments.

Of course I agree with you (as you can see from just two of my past posts on the Schiavo matter).

I don't which is more hypocritical...liberals demanding that courts follow the law and respect state's rights...or conservatives demanding that the federal courts intervene where state legislatures wouldn't

which do you think?

Posted by Irontank to cryptical
On News/Activism 03/30/2005 1:43:57 PM PST · 8 of 11

I agree with the author 100%...the federal Republicans lack of interest in limiting their powers to those enumerated in Art I, Section 8 of the Constitution and the courts lack of interest in forcing the federal government to do so, save Thomas (and Scalia sometimes), has convinced me that the sovereignty of the states (to the extent it exists as a practical matter anymore) is dying....and so is our Constitutional republic of decentralized government.

Seeing as how the Florida governor, legislature and courts have not done anything to save Terri Schiavo...it seems that this is not as clear-cut a case of murder as some would have it.

And if none of the 3 branches in Florida...where they've been dealing with the case for 15 years...are doing anything more at this point...why is Congress and the federal courts involving themselves

There is no more a legitimate 14th Amendment issue here than there was in Roe v Wade, in the Lawrence case in Texas...or in any of the cases where the left used the power of the federal government to impose its will on a sovereign state

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Posted by Irontank to FlipWilson
On News/Activism 03/23/2005 12:30:43 PM PST · 30 of 31

The Schiavo Bill did not create any new jurisdication of the Federal District Court in Florida...what it did was require it to hear, de novo, (without regard to or weight given to the state court decisions) the questions raised regarding alleged violations of Teri Schiavo's US Constitutional rights. Federal courts' jurisdiction to hear US Constitutional issues is explicitly provided for in Article III.

Terri Schiavo's parents claimed in federal court that the order to remove her feeding tube violated her 14th Amendment rights to due process and equal protection and her 1st Amendment right to free exercise of her Catholicism.

So, what Congress did was not unconstitutional but it is something that should trouble all us who favor the decentralization of power and our federalist form of government...

On the other hand, the Republicans new affection for big centralized federal government (e.g. Partial Birth Abortion Bill, action on gay marriage, No Child Left Behind, federal criminal laws, the USA PATRIOT Act, the recent Real ID (drivers license standards) Act, etc.) have finally convinced me that most so-called conservatives are no less hypocritical than those on the left now crying about the "gutting of state's power" (as the NY Times editorial put it yesterday).

I guess state's rights is mostly the refrain of whoever is out of power at the federal time at any one time. And those in power at the federal level will always argue that you just can't trust those states

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