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Friday, May 29, 2009

885. strict constructionist v. judicial activist

i love how the rnc (rush, newt, cheney) use clever wordsmithing to lure us into their alternate conservative universe.
such is the case with strict constructionist v. judicial activist.
of course, in the alternate conservative universe, a strict constructionist decides based on the rigid, unyielding application of the constitution (the mother of all rulebooks), only to be overruled on occasion by the bible (the father of all rulebooks).
they are god's supreme referees, who, if they do their "judging" correctly, should construct unanimous decisions a hundred percent of the time—after all, they are strict.
then there are the lowly, subversive judicial activists who legislate from the bench, which i guess means they make the law up as they go.

scoundrels in our midst!

what a beautiful alternate conservative universe.

except it is alternate.
way alternate.
planet bizarro really.

now to the world of commonsense.

judicial activist?
doesn't that translate to one who actively judges?
isn't that what we want from ... um ... judges?
and the reason one needs to actively judge is because the law isn't always so black and white—well white anyway.
if it only read like a pga golf rulebook, maybe.
but it doesn't, which is why law school is so damn hard, lawyering so conflicted, and judges required.

don't get me wrong.
judges need a healthy understanding of law, but to actively judge requires so much more.
and the right dose of empathy and "living in my shoes" can be a useful asset.

as far as strict constructionists are concerned, what exactly does that mean anyway?
sounds like guys (and gals) who build things and are pretty damn strict about it.
i have no idea what that has to do with judging.
i suppose in the alternate conservative universe it sounds pretty constructiony but in my world it sounds ... well ... it sounds pretty alternate conservative universey.

not my cup of tea.


Pam said...

This is all too complicated for my pea brain.

itsmecissy said...

In a nutshell, Judicial Activism is when judges substitute their own political opinions for the applicable law.

Depending on whether you swing politically to the left or the right, this is not necessarily a bad thing.

Good examples are Brown v. Board of Education when the 1954 Supreme Court ordered the desegregation of public schools. Another was Griswold v. Connecticut which established a consitutional right in 1965 to posses, distribute and use contraception. And the most famous Roe v. Wade in 1973.

Courts in California -both state and federal- frequntly engage in judicial activism so we're used to it here (LOL).