Posted on 07/30/2004 8:17:31 AM PDT by Hillary's Lovely Legs
I've never heard that definition. The word "activist" got applied to judges because their actions were reminiscent of political activists, only clothed in more patrician garb. IOW, they had an agenda to pursue, and were using their position of power in the courts to pursue it. A judge who holds himself to an objective, unchanging standard - that is, to the law itself - therefore cannot be considered a judicial activist.
"Strict constructionism" is something different. It's someone who has his own rule of interpretation when reading the Constitution (namely, that all of its provisions should be read "strictly"). This may blind him to its actual meaning, since there are some provisions of the Constitution that likely were intended to be read more broadly than others. A judge who does his job properly will not have any preconceived notions as to what the document says or how specifically it is to be read, but will instead read it with an honest eye towards coming to the most accurate conclusion he can about its meaning, based on the text, and the history, principles, and logic behind it.
The bottom line? Yes, it is judicial activism. But Ken H would say that it's good judicial activism because our guy is the one doing it.
You ought to stick to citing case law, IMO. You tend to stumble when you get off script and have to apply your own reasoning.
Judicial activism is when judges don't follow the Constitution, but instead substitute their own biases. IOW, the living, breathing algore Constitution.
He didn't say that he did.
He said, ""[P]erhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct."
If you're referring to the provision that "The United States shall guarantee to each state a republican form of government", then first of all, that clause does not vest that obligation in the judiciary specifically, and secondly, the form of government is not what's at issue here. Gun control, however inexcusable it is, does not of itself alter a state's form of government any.
That clause was not put into the Constitution so that federal courts could endlessly second-guess state laws based on purely vague criteria. The people never would have ratified the Constitution if that had been the case.
You know, I hate to say this, but what could you possibly hunt with a .50 calibre except for maybe tanks/APCs? A smaller calibre yeah, that's cool
No, I'm assuming the self-evident position that there is a true meaning to each of the parts of the Constitution. I'm not assuming that "everyone knows" what the meaning is, only that it's knowable.
If those tanks and APC's are being used as instruments of oppression, then that .50 caliber can come in quite handy.
Fine. But exactly what do you mean by "follow the Constitution"?
Isn't the Constitution defined by over 200 years of past decisions? That "this clause means X" and "that sentence means Y" and "reasonable" means such and such, etc.
If, for 200 years, some amendment is interpreted a certain way, doesn't that way become the Constitution? Isn't a change to it considered judicial activism?
No, there is not. The meaning is interpreted as times change, as technology changes.
Free speech includes nude dancing? Now who would have thought?
There is a right to privacy that allows a woman to murder her baby?
List for me all the rights covered by the 9th amendment. List for me all the state powers covered by the 10th. Define an "unreasonable search" or an "excessive bail", or a "speedy trial", or "keep and bear arms".
The founders didn't know the true meaning, yet you do? Or someone does? Who?
He didn't say that he did.
He said, ""[P]erhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct."
He suggested the RKBA is a personal right. Then he cited Justice Story on the RKBA by citizens. Why would he cite Justice Story in the context of his remarks if he didn't agree?
Just exercising his rhetorical skills?
Thomas may not agree and I think his remarks suggest that he has the incorporation of the Second Amendment in mind as a guarantee of a personal RKBA.
If a government can violate unalienable rights, hasn't it become the tyrannical government that the Founders said the people had the right to overthrow?
What's stopping the formation of the Islamic Republic of New Jersey, for example, if the BOR are not applicable to the States?
He cited Justice Story to support the conjecture.
I can make similar statements regarding UFO's, talking about a growing body of scientific commentary, and early hisorical writings, and even a quote from Art Bell. Does that mean I believe in UFO's?
That said, Justice Thomas may indeed consider the RKBA the key liberty of a republic -- it's just that he didn't say it, that's all.
quibbling bumpkin
Yes.
But regulating the RKBA is not "violating unalienable rights". To begin with, the RKBA is not an unalienable right. Second, even the 5th Circuit in Emerson said that reasonable regulations may exist. Third, the Founding Fathers voted against applying the BOR to the states when drafting that document, leaving the protection of those rights up to the individual states.
What if you lived in a state where the vast majority of the citizens did not want guns, and there was nothing in their state constitution protecting the RKBA. Over a period of many years, the state first banned machine guns, then rifles, then shotguns, and finally all guns.
Do you then have the right, nay the duty, to gather up all your friends and like minded citizens and overthrow the state government?
No, there is not. The meaning is interpreted as times change, as technology changes.
Free speech includes nude dancing? Now who would have thought?
There is a right to privacy that allows a woman to murder her baby?
List for me all the rights covered by the 9th amendment.
List for me all the state powers covered by the 10th.
Define an "unreasonable search" or an "excessive bail", or a "speedy trial", or "keep and bear arms".
The founders didn't know the true meaning, yet you do? Or someone does? Who?
Reasonable men know & can see the true meaning of our Constitution, paulsen..
Your sophomoric questions show that you are incapable.
Your reasoning or case law? I'm not going argue reasoning and then have you switch to arguing case law, which we already know.
To begin with, the RKBA is not an unalienable right. Second, even the 5th Circuit in Emerson said that reasonable regulations may exist.
So you were arguing case law? We know what case law says.
Third, the Founding Fathers voted against applying the BOR to the states when drafting that document, leaving the protection of those rights up to the individual states.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Second Amendment does not say "Congress shall make no law..." It says "shall not be infringed". The words "by the Federal government" do not appear in any copy I've read.
The Privileges and Immunities Clause should provide an immunity from State infringement. And I'm not talking case law here, but reasoning based on the text of your favorite Amendment.
What if you lived in a state where the vast majority of the citizens did not want guns, and there was nothing in their state constitution protecting the RKBA. Over a period of many years, the state first banned machine guns, then rifles, then shotguns, and finally all guns.
Do you then have the right, nay the duty, to gather up all your friends and like minded citizens and overthrow the state government?
There are options short of violent rebellion. Use the political process to change the laws. Civil disobedience by keeping a firearm in your home-- would you turn in your firearm if the State said you must? Refusing to convict citizens on arms violations. Getting more Justices like Clarence Thomas.
Remember, the Colonists put up with numerous usurpations and violations over the course of many years and tried many peaceful options before they acted.
So, no, I don't think the citizens of Illinois should start shooting the Sarah Bradys, the Million Moms, and like minded individuals (you can relax), but they should at least make the case that a constitutional right is being violated and refuse to obey such laws.
If someone said, "Marshaling an impressive array of evidence, a growing body of scholarly commentary indicates that UFO's are, as the evidence suggests, real", then I'd bet a hefty amount he believed in their existence.
Tough. You asked for it.
My arguments are based on case law. I cite the facts and quotes contained therin. Then you come along and ask, "But what is robertpaulsen's opinion?". I give you my personal opinion, then you get confused.
From now on, I'll just stick to the way things are. If I happen to include an opinion, it should be obvious.
"The Privileges and Immunities Clause should provide an immunity from State infringement."
The Privileges and Immunities Clause of Article IV? I don't think so.
And since my statement dealt with the FF and the original BOR, you're certainly not referring to the Privileges and Immunities Clause of the 14th amendment ratified 80 years later, are you?
"The Second Amendment does not say "Congress shall make no law..." It says "shall not be infringed". The words "by the Federal government" do not appear in any copy I've read."
By that you're saying that the first amendment does not apply to the states? Funny, I've yet to see you argue that the states may infringe on free speech.
That doesn't mean the interpretation is correct.
Free speech includes nude dancing?
No, despite the fact that someone's interpreted it to mean that. The meaning of free speech hasn't changed.
You're making a circular argument that amounts to the proposition that a court ruling, by definition, can't be wrong. If you're going to make that assumption, then there's nothing you can do to "prove" or "disprove" it. It's just an assumption.
The founders didn't know the true meaning
No, they knew what they were writing.
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