Actually, the term “activist” has ordinarily been used to describe judges who have shown a willingness to “second guess” the constitutional interpretations or judgments of other more political bodies. Such judges are often criticized for “substituting their own judgment for the judgment of the [fill in the blank with Congress, legislature, people, etc.]” and for “making the law rather than just applying the law.” The “activist” label is not reserved for judges with any particular political philosophy. Any court, whether liberal or conservative, which uses the Constitution to frustrate the objectives of legislatures will be castigated as an “activist” court.
The problem stems from the fact that not everyone has always accepted Marshall’s opinion in Marbury as readily as you have. Here’s a link to some Jefferson quotes on judicial review. Whenever a “bunch of unelected judges” tell the “people’s representatives” that the “people can’t have what they want,” the popularly elected politicians will squawk. They’re supposed to. It’s their job.
There are some very common-sense ways of determining what "necessary and proper" is and is not.
There are so long as you are willing to agree with Marshall, Hamilton and Washington that the “necessary and proper” clause includes more than just means which are “indispensable” to the exercise of a specified power. But the more important question concerns the extent to which the judiciary should attempt to get tangled up in the selection of “necessary and proper” means for the exercise of congressional power. These are just not judicially manageable issues and the Supreme Court has always recognized that.
I don't know if you were intimating that "passing laws which require a separate judicial proceeding for each alleged violation by each alleged victim" is some kind of quaint, off-the-cuff idea, but I should remind you that that's the way our whole system of law works. Our laws against murder, theft, drunk driving, money laundering, etc., all work according to that very principle. "Necessary and proper laws", if that means anything, means laws that conform to the basic principles of law that our society is built on, not just grabbing whole new powers just because you don't want to deal with all that due process stuff.
If the Congress had disregarded “all that due process stuff “in its selection of means for enforcing the Fifteenth Amendment, the Supreme Court would have been warranted in holding that the suspension of literacy tests was a violation of the Fifth Amendment and unconstitutional. But suspending the literacy tests did not deprive any person of life, liberty or property without due process of law.
Try to keep in mind that the purpose of the Fifteenth Amendment was to protect the franchise for black citizens so that they could participate in their own government, the same government that was collecting taxes from them. By 1965, Mississippi had been working on compliance with the Fifteenth Amendment for nearly 100 years and after all of that time and effort, 69.9% of adult whites were registered to vote while only 6.7% of adult blacks were registered. A southern president and the Congress were convinced that enforcing the Fifteenth Amendment required something more aggressive than just another legislative reminder.
So? Congress also has nearly unrestricted power to legislate for the District of Columbia. Suppose they want to outlaw SUV's in the district. Well, it would sure make it a lot easier if they could just outlaw SUV's anywhere within a 100-mile radius of the city, wouldn't it? But they're clearly stepping into new zones of power by doing that. Any judge with common sense could see that - regardless of how many studies and how much testimony they receive, moaning about how difficult it is to enforce compliance with all these out-of-towners coming in and out, blah, blah, blah.
The Congress could not base a prohibition of SUV’s outside of the District on its unrestricted power to legislate for the District any more than it could ban SUV’s in Canada based upon any purported power to ban them in the United States. The Congress suspended literacy tests in South Carolina based upon its power to enforce the Fifteenth Amendment in South Carolina.
Which makes a total mockery of the principle of limited, delegated powers. In case you didn't know why the original Constitution didn't come with a bill of rights, it was because the convention was afraid of this very scenario - that any power that isn't expressly prohibited would be assumed to be valid.
So Congress is to decide for themselves how their own powers are limited? Checks and balances, anyone?
Well, the way things are operating right now, there are checks and balances on the exercise of congressional power. In addition to the obligation of members of Congress to practice self-restraint based upon their view of Congress’s proper role, there exists the presidential veto, there exists the claimed power of the Supreme Court to declare unconstitutional any congressional acts which violates a constitutional prohibition, and there exists the power of the people to periodically monitor and control the membership of Congress to ensure that it reflects the people’s views on the exercise of congressional power. There are few subjects of more importance to members of Congress than public opinion.
From your prior responses, I’m unclear about something. Are you of the opinion that the people of the United States have too much or too little influence on the conduct of Congress?
I'm not sure exactly what your point is. It may be the politicians' "job" to complain about the judges, but it's the judges' job to restrain the politicians. No one said it would be easy, but these checks and balances exist for a reason.
There are some very common-sense ways of determining what "necessary and proper" is and is not.
There are so long as you are willing to agree with Marshall, Hamilton and Washington that the “necessary and proper” clause includes more than just means which are “indispensable” to the exercise of a specified power.
Which I can agree with, but there's still a limit.
But the more important question concerns the extent to which the judiciary should attempt to get tangled up in the selection of “necessary and proper” means for the exercise of congressional power. These are just not judicially manageable issues and the Supreme Court has always recognized that.
If you agree that there are common-sense limitations on the meaning of "necessary and proper", then there's no reason the judiciary can't enforce them. And the federal courts, in using their imagined 14th-amendment powers over the states, certainly have never had any cold feet about getting themselves into far less "judicially manageable" issues than that. Do I need to remind you once again of that awful phrase "compelling government interest"?
If the Congress had disregarded “all that due process stuff “in its selection of means for enforcing the Fifteenth Amendment, the Supreme Court would have been warranted in holding that the suspension of literacy tests was a violation of the Fifth Amendment and unconstitutional. But suspending the literacy tests did not deprive any person of life, liberty or property without due process of law.
You're missing the point. It wasn't that Congress was violating due process in its suspension of literacy tests, it's more that it was ignoring it. In other words, whenever a certain activity is prohibited by law, there exists a process by which the authorities are normally expected to act in order to enforce it, which I described in previous posts. It is unnecessary, as a matter of principle, for Congress not to be expected to rely on such a process. Of course, they still have plenty of leeway within the confines of that process, as they can set whatever consequences they desire for any violations of that prohibition, but there is intrinsically no need to go outside that general model of enforcing laws.
A southern president and the Congress were convinced that enforcing the Fifteenth Amendment required something more aggressive than just another legislative reminder.
Outlawing something other than what they were mandated to outlaw is not being more "aggressive", since it does nothing to target actual violators; it's just being more - dare I say "activist". A more aggressive approach would have been simply to enact more undesirable consequences for violations, just as one would expect whenever any law is experiencing rampant violations.
The Congress could not base a prohibition of SUV’s outside of the District on its unrestricted power to legislate for the District any more than it could ban SUV’s in Canada based upon any purported power to ban them in the United States.
Suppose the Congress disagrees with you, and says that it's chosen a necessary and proper means to enforce its law. Would you have the judiciary second-guess its chosen means?
The Congress suspended literacy tests in South Carolina based upon its power to enforce the Fifteenth Amendment in South Carolina.
It sounds like you're saying that the only bounds Congress can be held within are geographical bounds. But taking on a new power is no different from taking on powers in a new place. Both involve Congress going outside the limits of the law, and it's absurd to expect them to police themselves.
Well, the way things are operating right now, there are checks and balances on the exercise of congressional power. In addition to the obligation of members of Congress to practice self-restraint based upon their view of Congress’s proper role, there exists the presidential veto, there exists the claimed power of the Supreme Court to declare unconstitutional any congressional acts which violates a constitutional prohibition, and there exists the power of the people to periodically monitor and control the membership of Congress to ensure that it reflects the people’s views on the exercise of congressional power. There are few subjects of more importance to members of Congress than public opinion.
If we could rely exclusively on checks and balances, and on explicit prohibitions, to keep Congress in line, then there would have been absolutely no point in listing Congress' powers. If these powers were listed, and it was stated that Congress was not to exceed these powers, than that is the law. And in order for law to have any real meaning, there has to be an organ that specializes exclusively in applying that law. Checks and balances certainly help, but they can never be a substitute for a well-constituted judiciary.
And by the way, in case you hadn't noticed, Congress has hardly been, what you would call, fastidious about staying within its bounds.
From your prior responses, I’m unclear about something. Are you of the opinion that the people of the United States have too much or too little influence on the conduct of Congress?
Well, they certainly don't exert themselves on Congress as much as they should, but even if they did, I don't trust them to hold them to constitutional principles, without the aid of the judiciary. You only have to look at the ancient Greek democracies (and our modern one, for that matter) to see how disorderly and self-destructive they become. Popular will needs to be subject to checks and balances, just like all other forces in politics, in order for society to remain free.