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Supremely Convenient

John McCain's shifting definition of judicial activism

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In a recent speech to the National Rifle Association, John McCain presented himself as an advocate of judicial restraint. The presumptive Republican presidential nominee decried "activist judges" who override the will of the people as expressed by their legislative representatives, in the process "shrugging off generations of legal wisdom and precedent."

Yet that is exactly what the U.S. Supreme Court will be doing if, as the Arizona senator urges, it overturns the District of Columbia's gun ban. Evidently some kinds of judicial activism are better than others. Perhaps activism vs. restraint is not the best measure of what makes a good judge.

The most recent Supreme Court decision addressing the Second Amendment is ambiguous but has often been read as an endorsement of the view that "the right to keep and bear arms" pertains only to state militia service. That is the position taken by most federal appeals courts, and until relatively recently it was the conventional wisdom among legal scholars.

McCain nevertheless is right that the Supreme Court should reject that view—not because doing so epitomizes judicial restraint but because a thorough examination of the Constitution and its historical context shows that view is wrong. It is wrong no matter how many legislators, academics, and judges have endorsed it, no matter how long it was widely accepted.

What about the California Supreme Court's conclusion, announced the day before McCain's speech, that the state constitution requires official recognition of same-sex marriages? McCain criticized the ruling for overriding the people's will, reflected in a 2000 ballot initiative that reaffirmed the traditional definition of marriage as a union between one man and one woman. Although the four judges in the majority acknowledged their decision was inconsistent with the way marriage had always been understood under state law, they argued that long acceptance does not make a policy constitutional.

To buttress that point, they cited the 1948 decision in which the California Supreme Court overturned a ban on interracial marriage that had been in place since 1872. But that decision was based on the 14th Amendment, which was passed after the Civil War with the aim of guaranteeing the residents of every state, regardless of race, the "privileges or immunities of citizens," "due process of law," and "equal protection of the laws."

It was not much of a stretch to conclude that the 14th Amendment, which the U.S. Supreme Court had said protected "the right of the individual…to marry," barred anti-miscegenation laws. By contrast, the California Supreme Court now is redefining that right to mean something it never has meant, treating two people of the same sex, as opposed to a man and a woman of different races, as "similarly situated" and therefore entitled to identical treatment in the name of equal protection.

As a matter of policy, I favor an arrangement similar to the one mandated by the court, in which the government treats couples equally without regard to sexual orientation. The California legislature already has done that in almost every respect, extending to gay "domestic partners" all the rights and responsibilities that apply to heterosexual couples under state law while withholding the "marriage" label.

So why does it matter if a court pushes the state a bit further in this direction, requiring equal nomenclature as well as equal treatment? Because the state constitution leaves that decision to the legislative process, and a constitution that can be ignored to reach good results also can be ignored to reach bad results.

As McCain noted in his NRA speech, many gun control advocates claim the Second Amendment is "archaic," no longer relevant in modern America. Advocates of campaign finance regulation, including McCain himself, argue that the contemporary threat of big money in politics requires revising the First Amendment's command that "Congress shall make no law…abridging the freedom of speech." For courts confronted by laws based on such constitutional revisionism, judicial restraint is no virtue.

© Copyright 2008 by Creators Syndicate Inc.

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  1. Judicial activism is a bit more complicated creature then saying if the court overturns laws = activism, does not overturn = restraint. It matters what the reasons are for each descision. If a court does not overturn a law which clearly violates constitutional principles but has perceived good social effect, it is being activist.

    The problem with McCain is that constitutional priciples to him are that which he likes. The problem with McCain is that he seems to have few, if any, real political principles as he does not have a well thought out political philosophy.

  2. In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia

    Means “in the absence” not “must be a militia”. They were responding to the one side presented which insisted that it was “militia” based. Since the guys appealing booked and there was no case presented, this is a crap decision to base that on, and I’m kind of surprised that Reason would fall for that.

  3. It was not much of a stretch to conclude that the 14th Amendment, which the U.S. Supreme Court had said protected “the right of the individual…to marry,” barred anti-miscegenation laws. By contrast, the California Supreme Court now is redefining that right to mean something it never has meant, treating two people of the same sex, as opposed to a man and a woman of different races, as “similarly situated” and therefore entitled to identical treatment in the name of equal protection.

    This is where I get myself into trouble with equal protection clauses. It seems obvious to me the intent was to ensure the law, as written, was applied equally to all citizens – i.e., if burglary is illegal for you, it’s illegal for me, too.

    Apparently, the current understanding is that if I’m a burglar, I’m entitled to demand the burglary laws are re-written so my career choice is not discriminated against…

    *major eye roll*

  4. Oh for the love of…

    Pig Mannix – Your burglar example is ten times absurd. The appropriate example would be that *regardless of what group, subdivision, or classification you belong to* you are entitled to be *protected by* laws which make *other people taking your stuff* illegal.

    *Major eye roll followed by rude raspberry*

  5. Senator McCain can do that, because the phrase “judicial activism,” as used by Republican politicians, is meaningless. A void. An empty vessel, into which any material may be poured.

  6. Promoting the Bill of Rights, including the 2nd (absolute gun rights protected at the federal level) and the 10th (federalism for areas where the Constitution is silent) is never “judicial activism.”

    It is not the synthesis of new law at the judicial level, bypassing the legislature (which is what “judicial activism” refers to), it is simply re-legalizing our Constitution after it has been subjected to the rubbish of the “living document” crowd.

    If we are to be ludicrously post-modern about it, the document means nothing more than what the reader says it does, and the authors’ intent is irrelevant. If that is the case, then the Constitution has no practical value, no official is beholden to anything other than their own version of it in their mind’s eye, and it certainly places no substantive limit on government power.

  7. Senator McCain can do that, because he is a profession politician. His purpose is not to elucidate a coherent, moral political philosophy, but to attain office.

  8. What Sam Grove said.

  9. WTF Sullum? What about “Equal protection” don’t you understand. Gay couples are not “similarly situated” they are identically situated. Sue wants to marry Jane, the law will not permit it, John wants to marry Jane, the law will sanction it. One law for sue, a different law for John in the exact same situation.

  10. Senator McCain can do that, because he is a profession politician. His purpose is not to elucidate a coherent, moral political philosophy, but to attain office.

    Indeed. I think it was none other than Leo Strauss himself who questioned the utility of political philosophy in the realm of actual political application.

    Which of course makes his erstwhile so-called “followers” twice as absurd as they already were.

  11. In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.

    I have to say, I’m not thrilled with the burden of proof being on the person who is trying to enforce the Constitution.

    Leaving aside the issue of whether the militia clause limits the RKBA, shouldn’t the defenders of the statute have to show that short-barrelled shotguns doesn’t have a “reasonable relationship to the preservation or efficiency of a well regulated militia”?

  12. WTF Warren? Your arguement doesn’t follow. That’s like saying we’re exactly situated because you want to take stuff out of your house without being hassled by the police, and I also want to take stuff out of your house without being hassled by the police. One law for you, a different law for me, in the exact same situation.

    I support gay marriage, but specious arguements get us nowhere.

  13. The most recent Supreme Court decision addressing the Second Amendment is ambiguous but has often been read as an endorsement of the view that “the right to keep and bear arms” pertains only to state militia service. That is the position taken by most federal appeals courts, and until relatively recently it was the conventional wisdom among legal scholars.

    Define “recently.” I’ve been following the gun rights controversy since the Gun Control Act of 1968. I remember when the “collective rights” interpretation was invented, c 1979.

    Why else were the bans before then loopholed in? From the D.C. and Chicago handgun bans back to the 1934 restrictions on full-auto firearms, silencers, short-barreled firearms, etc. referenced in Miller, all were passed as tax/registration measures, not outright restrictions, because at that time no one was questioning the individual right to keep and bear arms.

    Indeed, Miller states:

    The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (Empasis added)

    Had Miller simply shown up and said, “Look at all the short-barreled 12 gauge ‘trench brooms’ used in WWI” the case would have had a much different ending.

    It is wrong no matter how many legislators, academics, and judges have endorsed it, no matter how long it was widely accepted.

    I’ll give you academics and judges over the past thirty years, but given that state legislatures have enacted laws protecting hunting in 50 out of 50 states, establishing right-to-carry in 40 out of 50 states, expanding castle doctrine, prohibiting lawsuits, banning confiscation during Katrina-like disasters, etc over the past twenty years I’d say most legislators disagree.

    D.C. v. Heller may change the way things are done inside the Beltway, but it hardly “override(s) the will of the people as expressed by their legislative representatives” or “shrug(s) off generations of legal wisdom and precedent” outside it.

  14. The presumptive Republican presidential nominee decried “activist judges” who override the will of the people as expressed by their legislative representatives, in the process “shrugging off generations of legal wisdom and precedent.”

    Yet that is exactly what the U.S. Supreme Court will be doing if, as the Arizona senator urges, it overturns the District of Columbia’s gun ban.

    No, I don’t see how that follows. The Second Amendment clearly applies, is clearly the highest law of the land, clearly the highest precedent, and clearly there are generations and centuries of legal wisdom behind the right to bear arms, going back to colonial law and to English common law before that.

    Contra joe and others complaints, I’ve read a lot of passages and I’ve almost never seen this obvious connection between “judicial activism” and reluctance to apply stare decisis or to judicial review in general. Most papers, op-eds, or serious articles I’ve seen on the subject used the term to describe judges substituting their personal preferences for the law. Applying the Constitution as written and ratified has nothing to do with judicial activism as I’ve ever understood it.

    Of course, I agree that it’s a flexible enough sounding phrase that people can use to mean lots of things, and can hear it and interpret different meanings. That makes it a bad phrase; unlike something like “original meaning” or “textualism” or “original intent” or other judicial philosophies, the plain meaning of the words “judicial activism” are not sufficient to exclude other interpretations. (One might even suspect that certain people have been intentionally muddying the waters.) Therefore I agree that it should generally be avoided.

    However, while I agree that it is certainly possible for people to use “judicial activism” and mean simply a willingness to engage in judicial review, I think that it’s pretty ridiculous for Reason writers to continually insist that anyone who uses the phrase must mean it in that sense.

    Wikipedia offers some cites on the issue:

    Black’s Law Dictionary defines judicial activism as “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

    Merriam-Webster’s Dictionary of Law says “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.”

    Both of those have citations. Nothing of those would have to do with the DC gun ban law, as the Constitution does indeed have a Second Amendment and, even if one disagrees about the proper interpretation, the individual rights interpretation is at least a reasonable one.

    It is true that some have recently defined judicial activism differently, to apply to any use of judicial review to overturn laws, judicial precedent, or even any ruling that they don’t like. It is specious to pretend that that is the only definition that people have ever used or intended, though.

  15. I don’t think the issue is so much the activism/restraint issue as it is a matter of judicial reasoning. Take Kelo . Somehow the supreme court, who I would think are supposed to be at least familiar with the concept of logic, somehow tortured out that stealing property from one person, at gun point, and giving it to another private person because it might increase a species of taxes is a public use.

    I also remember a lot of line of cases in criminal procedure where, like Kelo , reality be damned. Like when the cops are searching your car with a dog, that is not a search. Or when the cops walk up to you and search you, a Terry stop, that is not a search.

    So when these bonehead can conclude that A is not A, what the hell kinds of results do you expect? if judges don’t have the intellectual integrity to reason correctly, there is no reason to think that they are not going to let their personal biases dictate. Sometimes that might appear to be activist, sometimes it will look like restraint.

  16. WTF Warren? Your arguement doesn’t follow. That’s like saying we’re exactly situated because you want to take stuff out of your house without being hassled by the police, and I also want to take stuff out of your house without being hassled by the police. One law for you, a different law for me, in the exact same situation.

    What are you, Pig Mannix’s idiot disciple?

    The thing that divides the two is *possession*, a well-enshrined and defined concept in the law, some might say the bedrock of most common law. (Blah blah blah *property = freedom* blah blah blah).

    Their situation is not equivalent because one of them owns the objects in the house, and the other does not. Duh.

  17. I always thought that “judicial activism” was just another term for “legislating from the bench”, that is, judges basing their decisions on concerns unrelated to the law or the Constitution. Examples would be Brown v Board being based on sociology theories, Roe v Wade based on the biological opinions of ancient Greeks and medieval monks, and of course the travesty of Bush v Gore. I would definitely have to add that so-called conservative judges have been just as guilty of judicial activism as liberals.

  18. I don’t think the issue is so much the activism/restraint issue as it is a matter of judicial reasoning. Take Kelo . Somehow the supreme court, who I would think are supposed to be at least familiar with the concept of logic, somehow tortured out that stealing property from one person, at gun point, and giving it to another private person because it might increase a species of taxes is a public use.

    My understanding of the Supreme Court ruling in Kelo is that it was neither a defense of the practice nor a prohibition.

    The decision hinged on the fact that the disputed taking should fall under local control and the Court had no interest in starting a legal precedent that could potentially mess with thousands of future local takings situations.

    Rather than decide one way or the other, they essentially said “it’s not up to us to decide, it’s a local issue that the Feds shouldn’t be involved in.”

  19. What are you, Pig Mannix’s idiot disciple?

    The thing that divides the two is *possession*, a well-enshrined and defined concept in the law, some might say the bedrock of most common law. (Blah blah blah *property = freedom* blah blah blah).

    Their situation is not equivalent because one of them owns the objects in the house, and the other does not. Duh.

    One could argue that a gay couple and a hetero couple are not equivalent simply on the basis that the gay couple consists of two members of the same sex and the hetero is two members of the opposite sex.

    I’m split on the issue but I don’t think your logic holds water (and your tone certainly doesn’t help).

  20. One could argue that a gay couple and a hetero couple are not equivalent…

    And one would be arguing quite beside the point. The Equal Protection clause does not adhere to “couples”…it only ever adheres to *individuals*, and as such the right being protected equally is the right to enter into a particular type of civil contract (namely, a marriage contract).

    And that right certainly doesn’t depend on the *individual* being male or female, because as it stands now *males* individually have the right to enter such a contract, and *females* do as well.

  21. Elemenope,

    Agreed. I was responding to Warren’s original post:

    WTF Sullum? What about “Equal protection” don’t you understand. Gay couples are not “similarly situated” they are identically situated. Sue wants to marry Jane, the law will not permit it, John wants to marry Jane, the law will sanction it. One law for sue, a different law for John in the exact same situation.

    My response is that they are not situated identically because in the case of a hetero couple, you have an individual marrying a member of the opposite sex whereas with a gay couple it is an individual marrying a member of the same sex.

    That subtle difference seems to be what the whole debate rests on. Like I said, I’m not certain what I think.

  22. Hello Everyone,
    I will be very thankful if anybody can tell me where “The most recent Supreme Court decision addressing the Second Amendment is ambiguous but has often been read as an endorsement of the view that “the right to keep and bear arms” pertains only to state militia service.” quote is taken from. I see the claim EVERYWHERE in print and being an otherwise non-superhuman person and also having read Supreme Court Gun Cases by Bloomfield Press I have a really bad case of cognitive dissonance when I read the above quote. Since there have been _dozens_ of US Supreme Court cases post US v. Miller (1973) that reference the right to keep and bear arms I wonder where is the secret origin of this claim.

  23. It seems that Jacob’s article and criticism of McCain relies on McCain’s peculiar usage and idiosyncratic, possibly inaccurate definition of the term “judicial activism”, rather than the strict sense of the term most here would prefer.

    McCain’s use of the term, similar to that of Fox commenters and talk radio commenters, is rather more demagogical and ad hominem in nature than accurate.

  24. Senator McCain can do that, because the phrase “judicial activism,” as used by Republican politicians, is meaningless. A void. An empty vessel, into which any material may be poured.

    It’s not quite that empty. “Judicial activism” has meaning. It means the judge made a decision they didn’t like.

  25. “My response is that they are not situated identically because in the case of a hetero couple, you have an individual marrying a member of the opposite sex whereas with a gay couple it is an individual marrying a member of the same sex.”

    Excellent point… I’m gay and I’ve never understood the argument that I’m being treated unequally. As a gay man, I am completely free to marry a woman. The same set of laws apply to me as a hetero man. Marriage, by definition, is between a man and a woman (in my view). Now, that doesn’t mean I don’t think I shouldn’t be entitled to the legal rights associated with marriage (e.g. inheritance, etc.)… but, it’s not marriage… call it gay-arriage. marriage part deux, or something else. But, I’m a man and I am free to marry a woman… no inequality there.

  26. I was never making an attempt to argue either for or against gay marriage, just pointing out that there is a difference between hetero marriage and gay marriage.

  27. “As a matter of policy, I favor an arrangement similar to the one mandated by the court, in which the government treats couples equally without regard to sexual orientation.”

    At the federal level, where does the Constitution treat a “couple” differently than it does any two non-affiliated people? On what legitimate grounds might the federal government institute any policy with respect to marriage? From a libertarian perspective, why should the state government apply any such policy?

    Insofar as our government affords the state the ability to regulate marriage, and non-libertarians choose to do so, I say rock on states. One state’s decision to legalize some activity has no bearing on another state’s decision to make the same activity illegal. (The Full Faith and Credit clause does not change this, even if inappropriately swung about as such.) And that’s part of the joy of the multi-state system: legislative competition.

  28. HAI GUIZE! Y CAN”T I BRING MA GUNZ 2 DC? :~( WHAT”S THE DEALIO WITH THAT?!?!? LULZ> KTHXBYE!>!>!

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