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Thursday, April 14, 2005

Judicial Activism and Originalism

I have not read Levin's book but have read excerpts. Judicial activism is at an unprecedented level (pun intended).

That people see the Constitution as a "living document" merely allows the judges to decide what they want, their outcome preference, while ignoring what the document actually says. We see them twisting wording beyond what the enacters intended in order to provide some semblance of stare decisis (i.e. following precedent). Of course, when they follow precedent that was incorrect, see Dred Scott and others, they have veered away from the Constitution they all swear to uphold.

Edward Whalen captures the essence of what the Supreme Court should be doing by recognizing that in the "originalism" interpretation of laws, as espoused by Justice Scalia for one, ignores the probable result of a decision by remaining constrained to apply the Constitutions written words. This is the purpose of juducial scrutiny. Whalen writes:

"originalism will lead to "conservative results" on these issues only if, and to the extent that, elected legislators enact conservative positions into law. Conversely, originalism will lead to liberal results when elected legislators enact liberal laws. And, of course, the free play that originalism gives to the political process on these issues will allow the electorate the flexibility to change its collective position over time".

So absent violation of a Constitutional prohibition, a law enacted by a sovereign legislature should be upheld. Pursuing a purpose that was not part of the fundamental arrangement of our government is usurpation. What is to be done?

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