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To: NittanyLion
"Liberal constructionist" is a contradiction in terms, AP. If Gonzales makes his decision based on the plain writing of the Constitution, then he's a strict constructionist - liberal vs. conservative labels do not apply. His personal views on any issue become unimportant, so long as he applies the law fairly and in an unbiased fashion.

So-called conservatives must understand that what we need in the federal judiciary are judges who rule based on the law - not those who make it themselves. That goes for judicial activism of the conservative stripe as well as liberal.

How should we view judges who will let previous, activist bench legislation (a redundancy, I know) stand, because it is "settled law?"

Is it "activist" to throw out activist ruliings?




106 posted on 12/31/2002 9:14:42 AM PST by Sabertooth
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To: Sabertooth
Is it "activist" to throw out activist ruliings?

Great question, and IMO the answer is "it depends on how you do it." Roe v. Wade, for example, was engineered by William O. Douglass to give SCOTUS a chance to rule on abortion. I would hope that a strict constructionist would not attempt something similar, but would wait for a state to pass a law banning or severely restricting abortion, and continue to wait as the rulings at the appellate level bring the case to SCOTUS, and then would apply sound Constitutional reasoning to the case, in a way that acknowledges the precedent of Roe but also takes a big honkin' bite out of Roe, which will then slowly bleed to death as states realize they are no longer held in its shackles. Overturning judicial precedents, even bad ones, is something that should be done carefully, as overstepping bounds in that department can in turn allow libs to do the same against conservative, Constitutional decisions.

110 posted on 12/31/2002 9:20:09 AM PST by dirtboy
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To: Sabertooth
Is it "activist" to throw out activist ruliings?

And one more point here. Rather than seek to overturn Roe v. Wade at the judicial level, a better approach is to take it on at the Congressional level by passing a law saying that the federal government does not have the power to restrict state laws regarding abortion. This would force SCOTUS's hand on the matter, and give a strict constructionist a great way to step around the Roe v. Wade precedent - because he could simply find that Congress was acting within its power to restrain the powers of the federal government, rather than expanding them.

113 posted on 12/31/2002 9:24:45 AM PST by dirtboy
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To: Sabertooth
How should we view judges who will let previous, activist bench legislation (a redundancy, I know) stand, because it is "settled law?" Is it "activist" to throw out activist ruliings?

IMO, a SCOTUS justice can use other cases for guidance, but must give the most weight to their reading of the Constitution. So if a case came up that had already been decided (let's say Roe v Wade) by a prior court - and the current court felt a plain reading of the Constitution does not agree with the ruling - the strict constructionist method would be to overturn the previous ruling.

FWIW, I also believe a court should give greater weight to statute than prior rulings, but of course less weight than the Constitution is accorded.

116 posted on 12/31/2002 9:26:37 AM PST by NittanyLion
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