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October 15, 2009

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Comments

Kent Scheidegger

Andrew Friedman writes, "'judicial activism' and 'strict construction' are simply code words for the very same thing - - making law in accordance with the judge's political views under the guise of interpreting the constitution, a statute or existing case law."

"Strict construction" is a term we don't hear much any more. Andrew's statement is quite obviously not true of original understanding jurisprudence, as the opinions of originalist Justices Scalia and Thomas in a whole series of cases favoring criminal defendants demonstrate.

As for the notion that it is up to the legislature to fix bad interpretation, that is often done with statutes but is far more difficult with the Constitution. Amending the U.S. Constitution is enormously difficult, for good reason. We should not have to amend it just keep it meaning what it has always meant.

Ken Loveless

Long live the Bill of Rights and ACLU! Up Flag!! Salute!!!

Andrew Friedman

"judicial activism" and "strict construction" are simply code words for the very same thing - - making law in accordance with the judge's political views under the guise of interpreting the constitution, a statute or existing case law. If a conservative or liberal judge steps over that line in a way that the public does not accept or want, then it is up to the legislature to fix it by enacting laws that trump the judge's interpretations (or by making their intent clearer in the first place).

Jon

"Given that judicial activism in the true sense of that term is the heart and soul of the ACLU, scrutiny is entirely appropriate."

That makes as much sense as saying that any member of the Republican Party should be given extra scrutiny.

Because clearly, they are anti-American, they believe the less government the better - and we all know the "slippery slope" that leads to - no government and thus anarchy, they believe in interpreting the Constitution as not 3 co-equal branches, but an Unitary (Imperial) Executive, with Congress and the Judiciary rubber-stamping everything that Executive says.

The Judiciary, in its co-equal role, sometimes has to put the brakes on the other 2 branches and yes, sometimes in doing so it must rely on rights in the Constitution that do what --gasp-- empower "the people" against the government (which Kent thinks is probably the same as "depriving [them of their rights of self government]".

As usual, an Activist Judge is one who rules in a way the observer doesn't like, i.e. in the ACLU's case by tending to side with Individuals or The People against Governmental action.

Kent Scheidegger

Given that judicial activism in the true sense of that term is the heart and soul of the ACLU, scrutiny is entirely appropriate. If a person has spent a large portion of his career in ACLU work, he probably does believe that "interpreting" the Constitution to mean things the people never intended -- thereby depriving the people of a portion of their constitutional right of self-government -- is the proper role of the judiciary.

Anyone who believes that should not be confirmed for a lifetime appointment to the federal judiciary. To this day, the people of the Far West suffer from Jimmy Carter's appointments to the Ninth Circuit. We should remember those past mistakes and not repeat them.

That is not to say that past association with the ACLU is disqualifying. It is, however, an indicator of a strong likelihood of something that should be disqualifying, and that possibility needs to be carefully checked out.

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