'Progressives Are Wrong About the Essence of the Constitution'


In his latest column for The Washington Post, George Will praises Timothy Sandefur's superb new book The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. As Will explains, the book addresses perhaps the most fundamental debate in American politics: namely, the battle between what Sandefur calls "the individual's right to freedom" and "the power of the majority to govern." Sandefur, a principle attorney at the Pacific Legal Foundation, comes down squarely on the side of the individual. Here's a snippet from Will's review:

Sandefur says progressivism "inverts America's constitutional foundations" by holding that the Constitution is "about" democracy, which rejects the framers' premise that majority rule is legitimate "only within the boundaries" of the individual's natural rights. These include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment.

Many conservatives should be discomfited by Sandefur's analysis, which entails this conclusion: Their indiscriminate denunciations of "judicial activism" inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is "basically about," which is making majority power respect individuals' rights.

In 2013, Reason TV interviewed Sandefur about the ongoing legal challenges to the Patient Protection and Affordable Care Act. Watch that interview below.

NEXT: Steven Greenhut on California's Raw Milk Debate

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  1. “Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism.”

    I don’t think conservatives have been indiscriminate about calling stuff “judicial activism”. They’ve been critical of the judiciary that treats their own opinion and precedent as higher law than the Constitution.

    1. The problem is that those jurists is that of course they think their opinion and precedent comports with the Constitution, all of them will.

      1. I remember Scalia saying he has voted to uphold precedent he thinks is constitutionally wrong because he was afraid the result would be too far reaching (if memory serves, it had to do with Wickard).

        So no, there are instances where courts have essentially created a controlling law with only tenuous connection to the Constitution.

        1. I think in some cases Justices have gone along with precedent they think was ultimately not in line with the Constitution, for state decisis reasons but often the disagreements are based in people who really do think that their interpretation is true to the Constitution while others think it could only be their opinion.

  2. Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism.

    Their own love of big government whenever they’re in charge of it serves progressivism, when the electorate’s inevitable pendulum swing back to the left hands that powerful government over for things like Obamacare and, well, continued halts to civil liberties (as it turns out). The Bill of Rights constrains so-called conservatives getting their will done just as much as any would-be central planning socialist.

  3. The problem with unenumerated rights is that it sounds nice in theory but in reality you can end up with a future Chief Justice Kagan declaring what they are.

    1. Fairly recently I remember Ginsburg asking someone making a case to list off these unenumerated rights. Really? You’d think a sitting judge knows that by definition unenumerated means not listed.

      1. That could just refer to not written down in the Constitution itself, not that they are cosmically ‘unlistable.’

        1. I didn’t say unlistable. Oh, you’re being an ass again. Never mind.

          1. List is a common synonym for enumerate.

            Imagine a wife writes a note to her husband ‘Do not forget to stop by the store and get milk, eggs and the usual things I will not enumerate.’ If you run into the fellow at the store and he shows you the note and you say ‘what are those usual things, can you list them for me’ are you asking a crazy question?

            1. Yes, many things that a menstruating women asks for are unlistable.

            2. Imagine a wife writes a note to her husband

              After leaving Warty’s basement, his imagination is the last place sarcasmic wants to go.

            3. List is a common synonym for enumerate.

              Fair enough. So why did you go from unenumerated to unlistable instead of unlisted?

              Oh yeah. Because you’re being an ass again. Never mind.

              1. You yourself interchanged the two in your original comment:

                sarcasmic|4.18.14 @ 12:26PM|#

                Fairly recently I remember Ginsburg asking someone making a case to list off these unenumerated rights. Really? You’d think a sitting judge knows that by definition unenumerated means not listed.

                1. I used the suffix ed not able. Ass.

                  1. This is like a wheel, I explained that. You seemed to think it silly that someone would ask Ginsburg to list the unenumerated rights, as if the latter term meant that the rights could not be listed (unlistable) rather than just not listed in the Constitution.

                    1. This is like a wheel

                      That’s exactly what I mean when I say you’re being an ass. You say you agree, but then you add some subtle difference, like adding a conditional. That invites clarification, and then you do it again. So it goes round and round.

                    2. I was not agreeing with you in this conversation, but the one infra. In this one I have consistently said there is nothing odd about asking a justice to list what they think the unenumerated rights in the Constitution are. You are the one off on some odd, semantic tangent about listed versus unlistable.

  4. I think of judicial activism as judges making law, as opposed to them doing their job and blocking it.

    1. What would be examples of the first that do not fall into the second?

      1. PENALTAX!

        1. So the upholding of a law would in that case be judicial activism in that the jurist might make new law to save the law in question? Fair enough, I can see that idea.

          1. No. He basically rewrote the law by changing it from a penalty to a tax. Oh, you’re being an ass again. Never mind.

            1. You are such a disagreeable fellow that you trouble with someone trying to agree with you.

              1. I have trouble with someone being an ass.

                1. You have trouble with yourself?

                  1. You know, Bo, if you weren’t such an ass all the time, people might stop expecting it from you?

                    BTW, have you ever kissed a girl?

                    1. No, no kissing, because as Warty can attest, that kind of thing does not go on with college students.

                    2. What regular commenter on here is not an ass from time to time?

                    3. I mean, sarcasmic was going at me when I was agreeing with him, and I am the one being an ass…

                    4. I mean, sarcasmic was going at me when I was agreeing with him

                      No, you were equating upholding a law with rewriting it. That’s not agreement. That’s being an ass.

                    5. No, I said ‘the upholding of a law would in that case be judicial activism in that the jurist might make new law to save the law in question,’ in other words that he actively ‘made law’ to uphold it, which is what you were talking about.

            2. He didn’t really change the law, though. The thing that actually happens under the law is still the same and the relevant text of the law is still the same.

              But I’d still agree that that is an example of activism. He went out of his way to justify a law in a way that the people who made the law didn’t.

              1. I see the point, but it would also be hard to see the Court striking down a law as the opposite of judicial activism, would it not?

                1. Only if you don’t understand what is meant by “judicial activism”. It is not merely striking down laws.

                  1. What does it mean then? Does it just mean ‘ruling wrongly’?

                    1. See John’s post @1:16.

      2. Roe v. Wade is one where Congress should have been the body to propose the three trimester system, and the Supreme Court would have decided whether that was within their constitutional bounds to do so. Instead, Congress dithered and the Supreme Court legislated in their stead. I’m not complaining about the outcome, but the process was all backwards.

        I agree with sarcasmic — I don’t consider a court “activist” that tells Congress or the President that some action they’ve taken is out of bounds. We need more of that to restore balance.

        1. Henry Wade was the DA of Texas. How would Congress have decided whether Texas law forbade abortions?

          1. It was well within the authority of Congress to create a Federal definition of personhood, and determine when rights attach even for state laws. Which is pretty much what the SC did.

            1. “It was well within the authority of Congress to create a Federal definition of personhood, and determine when rights attach even for state laws”

              Under what enumerated power of Congress?

              1. No wonder people don’t reply to you — you are tedious. Lesson learned.

                Oh, and Article I, section 8, clause 18. Certainly an abused clause, but when the constitution refers to “persons” it is certainly “necessary and proper” for Congress to create a reasonable definition.

                1. That is a ridiculous reply, no wonder you want to use the tediousness dodge. The necessary and proper clause empowers Congress to do things connected with enumerated powers. So what enumerated power would a federal abortion ban be necessary and proper to achieving?

                  1. “Citation needed” is the most tedious of comments.

                    The original post was asking for an example of judicial activism. Do you agree that Roe v. Wade is such an example? I honestly can’t tell from your reply, because you seem to take an Olympic Boxing type stance to discussions — trying to win on points by landing weak jabs rather than having the stronger side.

                    I mean, if you’re saying if Congress passes a law outlawing abortion and the SC overturns it as not within their enumerated powers, I would certainly agree that this does not count as judicial activism as long as it is a rules-based and not outcomes-based decision. The latter belongs to Congress.

                    1. I did not write ‘citation needed,’ I really wanted to know under what power the feds would do what you suggested. It seemed rather pertinent and ironic that in a conversation about judges overstepping constitutional boundaries that a solution involving Congress overstepping its would be offered.

                      I guess Congress could bar the business of abortions under a strained commerce clause theory, but I honestly do not see a federal enumerated power for that. I think this is why pro-life congresspersons have generally turned to passing constitutional amendments in that area.

        2. But some people do consider striking down laws activist as well. I think the question of judicial activism is a waste of time. The only thing that is relevant is whether a decision is legally and constitutionally justifiable.

  5. I think of judicial activism as judges making law


  6. Progressives Are Wrong About the Essence of the Constitution

    Yes, and conservatives are wrong about the essence of the constitution. As are greens, socialists, birchers, and almost every political cohort except classical liberals (aka libertarians).

    1. The people that wrote the constitution went back to their home states and for the most part began undermining it almost immediately.

      We are fortunate that it hasn’t been torched in its entirety yet.

      1. That is why they keep it behind that shatterproof glass.

        1. I wonder how many legislators secretly fantasize about literally destroying the constitution? Seems like a good number of them must privately view it as just an inconvenience.

          1. I think they honestly just do not think about it. And really, they probably do not even care whether their law is constitutional or not or even if it will be held to be, they just want credit which they hope will lead to power.

            1. I think you are probably right about most of them. Constitutional issues don’t seem to be a big thing in legislative debates.

  7. Using the coercive power of government to force individuals to sacrifice their individual rights for the “greater good” really is what progressivism is all about.

    …and it never ceases to amaze, how they can’t see the similarities between themselves and both the communists and the fascists–but it should be obvious.

    Certainly, anybody that’s ever seen Tony rant about how Rosa Parks never had the right to sit in the front of a public bus can see his similarities (with the Klan), but everyone who’s ever seen Obama argue–no matter what the Constitution says–that the IRS should harass working poor individuals for not buying insurance should get it, too.

    Any system of ethics that proudly denigrates human agency as a point of honor is fundamentally flawed.

    Fascists? Flawed. Communists? Flawed.


    Fundamentally flawed for the same reason.

    1. Using the coercive power of government to force individuals to sacrifice their individual rights for the “greater good” really is what progressivism is all about.

      Conservatives too.

      1. I’m going to say that isn’t the essential definition of conservatives.

        Some conservatives lapse into that, but using the government to force individuals to sacrifice their individual rights isn’t the essential definition of being a conservative.

        Just as examples, I think of gun rights as being something conservatives believe in–no matter what the majority says. And they’ll explicitly state that.

        When I listen to progressives talk about abortion, I often hear them denigrate the individual rights of the fetus. They may think that women should be free to get an abortion regardless of what the majority says, but the thrust of their argument isn’t about going against the majority.

        A lot of them will tell you that fetuses don’t have rights because a majority of the population, nationally, supports abortion rights.

        1. That does not make sense, all the action on abortion takes place when a plaintiff files suit against some law passed by a majoritarian body.

          1. I’m talking about the ideology of progressives and conservatives.

            I’m talking about what’s going on in people’s heads.

            What are you talking about?

            1. I do not think you understood your progressive, defenders-of-abortion friends, or else they are particularly confused themselves. All the real action about abortion involves individuals asserting their right against a majoritarian law. In that area at least I think most progressives do not rely on majoritarian justifications, but rather individual rights.

              1. “All the real action about abortion involves individuals asserting their right against a majoritarian law.”

                That’s the way the issue inserts itself into real life.

                How else would the subject come up?

                That’s not what’s going on in their heads.

                Did you see the progressives going after Sarah Palin for deciding to go ahead and have Trig after finding out that he would be born retarded?

                They hate women for choosing something other than they “should”.

                And that’s just one example.

                1. I am not sure what you are getting at now. You said progressive supporters of abortion do not understand that issue in terms of rights asserted against majorities. I said I doubt that because every major abortion case involves a plaintiff asserting a right against a majoritarian law. Now you are saying…what exactly?

                  “Did you see the progressives going after Sarah Palin for deciding to go ahead and have Trig after finding out that he would be born retarded?”

                  Can you provide an example of that? I remember some progressives saying it was really her daughter’s child, but not that.

                  1. “I doubt that because every major abortion case involves a plaintiff asserting a right against a majoritarian law.”

                    How else would the subject come up?

                    That’s the way the issue presents itself in real life.

                    That isn’t what’s going through progressives’ heads.

      2. I think the Arnold Kling “three-axes” model is helpful here — progressives will sacrifice individual rights in the name of helping those they perceive as oppressed, and conservatives will do the same in the name of preserving civilization over barbarism.

        Thus the conservative law and order types who don’t mind absurd border checks, stop and frisk, the drug war, etc. And progressives who support any restriction on anyone they can label as an Oppressor.

    2. Two Heinlein quotes immediately come to mind.

      “Political tags ? such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth ? are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire. The former are idealists acting from highest motives for the greatest good of the greatest number. The latter are surly curmudgeons, suspicious and lacking in altruism. But they are more comfortable neighbors than the other sort.”


      “There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him.”

    3. You shouldn’t make a rhetorical distinction between communists and fascists – they are, in reality, the same thing.

      Its time to do a little memetic engineering of our own – let’s work to erase the fascists (Nazis) bad, Communists (SU) good intentioned meme that has infected the majority of the population.

      1. We need more movies about how !$!@#!@# awful Communism is/was.

        I thought FX’s The Americans was going to give us a taste of a little more realistic depiction of Communism’s awfulness, but for whatever reason, they seem to have been easing off the criticism of the Reds.

        Although some parts of this week’s episode makes me think they’re just trying to provide motivation for the main characters to continue.

      2. “You shouldn’t make a rhetorical distinction between communists and fascists”

        I try to reach people wherever they are.

        Most people do see important distinctions between communism and fascism, and those people need to be shown that the thing that was the same was their belief that the government should force people to sacrifice their individual rights in the name of what they saw as the common good.

        The fact that what they saw as the common good was actually evil and awful is beside the point, and the fact that the progressives can likewise be defined as people who think the government should force people to sacrifice their individual rights for the “common good” is on point precisely.

        A lot of people thought the Tea Party was stupid because they carried signs that described Obama as both a fascist and a communist. We’ve gotta meet those people where they are if we want them to understand us–because they aren’t going to come to us or understand us by accident.

  8. The greatest trick Progressives ever pulled was turning one of the core principles enshrined in the Constitution on its head. The Constitution makes it clear that govt powers are specific and enumerated, while individual rights are vast and do not require enumeration to exist. The Left has effectively managed to create a reality in which govt powers are no longer specific and individual rights are no longer assumed. They’ve done a good job of blurring things to the point where the “public good” outweighs rights in the hierarchy of many Americans’ value system. Once that happened, it really was game over for the American experiment.

    1. Some people opposed the Bill of Rights because they warned that it could result in those listed rights being the only restrictions on government, as opposed to the government only having listed powers.

      They were right.

        1. By what process is something determined to be a right and who is empowered to make that determination?

          1. What difference does it make?

            Before people understood how stars were formed, weren’t the stars shinning anyway?

            My belief is that they’re a social adaptation–like language. People still argue about the specifics about how things like language came into existence.

            Does that mean language doesn’t really exist?

          2. It’s actually very simple. You have the right to do anything that does not infringe on anyone else’s rights, including not requiring another person to supply you with something to fulfill what you call a “right.” I always chuckle when someone says silly things like we all have a right to housing, a job, or healthcare. No, you don’t. If you believe you do, then you’re part of the problem.

            1. I always chuckle when someone says silly things like we all have a right to housing, a job, or healthcare.

              I don’t chuckle. I cringe. Because what they’re saying is that they have a right to use government to force other people to pay for those things. Often though, we’re talking about people who do not understand the difference between services and wealth transfers. They see a tax as a tax and spending as spending. More and more I have come to realize that critical thinking skills are less common than I once believed.

              1. From Slate:

                The Hobby Lobby case pits the religious freedom of a business that employs 13,000 people against the rights of its female workers to comprehensive preventive care. The idea that such care should include coverage for birth control comes first from Congress, which mandated preventive coverage when it passed the Affordable Care Act. And it comes from the Institute of Medicine, which has plenty of research to cite showing the health benefits of averting unintended pregnancy. The first question about this case is whether a business has religious rights…

                This woman has two degrees from Yale, including a JD, and yet still possesses no critical thinking or logical ability. In just this one paragraph she posits that women have a right to something from their employers, that the employers should have to provide it because the gov says so and research says its good, and tops it off by conflating a business with the owners. There is no logic on the left, only feelings.

                1. Ah yes, the progressive logic that if someone doesn’t buy you lunch, they are violating your human rights by starving you.

              2. More and more I have come to realize that critical thinking skills are less common than I once believed.

                I was having a conversation with my wife’s cousin a few weeks ago. We both have degrees in similar engineering disciplines, and he was telling me that he was going to push all three of his kids to pursue one as well. Not so they could get jobs as engineers, but so they would have critical thinking skills that seem to be lacking in the world today.

                1. Engineer = automatic critical thinking?

                  If so, I’ve met quite a few that break that assertion.

          3. By what process is something determined to be a right and who is empowered to make that determination?

            Your negative rights are unlimited. As JZ states:

            Tenet 1

            People may do as they choose, PROVIDED in doing so they do not infringe upon the rights of others.

            1. You’re defining those rights, but not really talking about how they came about.

              I think they’re a function of the responsibilities we choose to assert. Saying that I accept the responsibility for any traffic accidents I cause means I have the freedom to drive, etc.

              In that sense, they’re natural.

              Once they become generally accepted, it becomes something like a contract between the government and the people.

              They’re an evolutionary adaptation, though. Societies that feature them prominently outperform those that don’t.

              Imperial Japan, Nazi Germany, the USSR, none of them featured individual rights prominently–in fact, they denigrated individual rights. So, Darwin through them on the ash heap of history with all his other rejects.

              China didn’t respect individual rights, so it had to adapt. The more China adapts to the reality of individual rights, the more it will flourish.

              Evolution isn’t just physical. Fish travel in schools for a reason. The social conventions of coyotes and chimpanzees are adaptive. We have not stopped evolving. And individual rights, so far as I can tell, are the absolute cutting edge of social adaptations.

              1. through, threw…

                My quasi-dyslexic high speed typing skills continue to evolve, also.

              2. I don’t think its required to identify where rights come from prior to claiming them.

                We are endowed by our creator…good nuff.

                We have rights because we are free people.

                1. Yeah, our rights exist and function as they do regardless of whether we understand where they came from or agree about how they got here.

                  I found a Frisbee in my backyard the other day. I don’t know where it came from or how it got there, but I swear the thing exists.

        2. The greatest amendment by far.

          If I could only keep one, that’s the one I’d keep.

          It underlines the essential problem with arguments like the one Stevens made about the Second Amendment, recently.

          You can change the Constitution. You can repeal the Second Amendment!

          But you can’t take my right to bear arms away–because my right to bear arms doesn’t come from the Second Amendment. That’s just an explicit expression of my rights–to try to help the government in the future to not make a really big, stupid mistake!

          They can pass a law saying that black people don’t have a right to vote, that gay people don’t have a right to get married, that I don’t have a right not to buy insurance, that I don’t have a right not to go to church…

          Won’t change my rights in any way.

          I think that may be the ultimate frustration for Progressives–that libertarian types really believe in their rights. That no matter what laws they pass, they can never really take our rights away–and yet suppressing our individual rights (for their “greater good”) is their whole purpose.

          1. Progressives believe that rights come from government, as opposed to being enforced or violated by government. Government is their god.

            1. That’s the essential part of it.

              I always respond that if our rights don’t exist despite what the majority wants, then they don’t really exist at all.

              What is a right if not something that exists despite what the majority wants?

              1. To be sure, their take is that I have that right–and that our rights don’t really exist because they don’t exist despite what the majority wants.

                They will talk about rights as being a positive–like in terms of civil rights and abortion rights. …but it’s just advertising.

                They don’t believe in civil rights–they believe that white racists have a right to do what they’re told. They don’t believe in abortion rights–they believe that the religious right has the right to stick a sock in it.

                For progressives, individuals don’t have the right to make choices for themselves. Although, sometimes they’re willing to be nice and tolerate that–especially if what you want to do is what they want you to do.

                1. I think progressives have a less than coherent idea of rights, I just was disagreeing that they have no conception of them at all.

                  1. They have a conception of them–and they hate them.

                    The progressive conception of individual rights is that they’re a impediment to everything progressives want to do.

                    To be progressive is to be hostile to individual rights in the name of progress.

                    1. “To be progressive is to be hostile to individual rights in the name of progress.”

                      It depends on the issue, as you yourself seem to concede (regarding abortion, right?).

                    2. “It depends on the issue, as you yourself seem to concede.”

                      I conceded no such thing.

                      I gave one example of abortion rights, and I talked about how they can’t talk about them without denigrating the rights of a fetus.

                      I talked about civil rights, but they see that as hampering the individual rights of racists to discriminate.

                      The progresssives hate individual rights–as I’ve stated repeatedly, their whole purpose is to diminish individual rights in the name of progress.

                      There may be some honest liberals out there, who still reverence things like civil rights–but, by definition, they are not progressives.

                      Honest liberals who support the ACLU? Sure, I suppose that’s possible.

                      Honest progressives who support individual rights over their own ideas of progress?

                      No such animal.

                      There may be a few people out there who call themselves progressives as a brand name–but being a progressive is being hostile to individual rights that get in the way of “progress”.

                2. For progressives, individuals don’t have the right to make choices for themselves.

                  With the exception of what they do with their penises, vaginas, and rectums.

                  1. Yours is time stamped before mine, but mine appeared first.

                    Somebody wanna explain that?

                    1. 1 minute penalty for use of “rectum” in a comment.

                    2. 1 minute penalty for use of “rectum” in a comment.

                      Would you prefer “poop chute?”

                    3. Somebody wanna explain that?
                      Threading. My 1:09 comment is in reply to the 1:03 comment, while your 1:10 is a reply to the 1:08 comment. So that’s the one it follows.

            2. I think it’s simpler than that. They just don’t believe that rights exist in the same sense that we do. They still use the word “rights” but in a completely different way.

              1. See, I am not sure about that, at least all the time. I think when progressive abortion supporters talk about rights they are at least partly talking about rights (when you exclude any goofy positive rights claims they may have) the way we do: something the individual may assert against majorities.

              2. All they understand is force, and they love to use it whenever they can. So if something does not involve force, like keeping and bearing arms, they don’t believe in it. They only support free speech in the context of forcing their speech onto someone else.

                That’s why they despise liberty. Liberty is being free from the initiation of force. Everything they call a right involves an initiation of force.

                That’s why I don’t have any progressive friends anymore. They don’t like my love of liberty.

      1. The hell of it is, the people who supported the Bill of Rights were right too. In how many cases has a clear injunction to “make no law” been subverted?

        Power finds an excuse, always.

      2. They were right.

        I don’t think that is entirely clear. I think that with or without the BOR, government is still going to do whatever it can get away with. The Constitution is still vague in spots and has no enforcement mechanism.

        I still think it was better to include a BOR than not.

    2. Here is why I think your theory is untenable: most of the jurisprudence, at least that we still have as law today, developing unenumerated rights was developed by liberal or progressive jurists, not conservative ones.

      1. That may be true in terms of jurisprudence, but on the grander scale (societal, governmental, zeitgeist) there’s no question that more people today view “public good” as a legitimate goal that should supersede individual rights. Much of the 20th century consisted of a fundamental change in that regard. The 9th and 10th Amendments are essentially ignored and virtually unknown today among the masses. I would argue that is by design.

      1. On sale at GOG now!

  9. Warning: contains comments.

    There are always limits to personal freedom dictated by socierty. So if people want to do drugs, fire bazookas, or grow hemp, consentually marry multiple spouses, or even walk around naked, or copulate in public, “liberty advocates” should support them in this. But they won’t. In fact, they will send them to jail.

    All this liberty talk is fine, as long as people behave within the confines of the social order, as dictated by the majority.
    There are always limits to Liberty, and if your liberty takes you outside of the accepted social order, then even George Will won’t back you up.

    4/17/2014 8:59 PM EDT
    It’s no coincidence that American “conservatives” don’t believe that the Earth represents billions of years of adaptation. They can’t adapt.

    It’s no coincidence that they think human-caused global warming is real. They can’t adapt to a changing world, much less one they need to take responsibility for!

    They don’t live in the New World that the founding fathers embraced. They want a stasis that the founding fathers didn’t have and didn’t want and didn’t want for the next generations.

    1. They want a stasis

      Weapons grade projection.

      1. It’s not a completely unfair thing to say about conservatives, though. Wanting things not to change too much too fast is kind of part of what defines conservatism, isn’t it?

  10. Honestly, I don’t know what the fucking issue is AT ALL. To me, the Constitution was ALWAYS pretty straight forward and clear as to what they meant.

    All this crap about it being ‘living’ or ‘dead’ is nonsense. That’s just prog-speak to be able to adjust on the fly the Constitution in their own image. Hence stupid things like ‘it was written in a different time’ and ‘life is more complex now’ and ‘they were white guys with slaves ergo we need to ‘fix’ that.’ There’s nothing and I mean nothing in the language or words of the Constitution that remotely resembles or supports progressive positions. The mere fact they need to contort themselves into creepy Cirque du Soleil characters points to this grotesque intellectual trompe d’oeil.

    Where there is possible room for interpretation it’s ABUNDANTLY CLEAR through their personal and public writings where the collective and the individual collide the LIBERTY OF THE INDIVIDUAL MUST PREVAIL.

    What’s so fucking hard to grasp?

    Also, Reason could you stop posting articles? I have to go wash the car.


  11. When writing the next constitution, we really need to look hard at the judicial system. I am really starting to question the wisdom of a judicial system based upon precedent (yeah, I’m sure there is a legal term for this, that I’m not using).

    Not sure what it gives you, but I know what it takes from you. As it stands judges have the ability to rewrite the Constitution. They invent concepts like, expectation to privacy and third party doctrine… After several iterations of this bullshit, the Constitution means nearly the opposite of what it says.

    Bottom line. You will eventually get bad justices, not interested in liberty. There needs to be better ways to curb judicial power.

    1. Expectation to privacy was created to limit government. It was in the case where the government bugged the phonebooth so the suspect could not argue there was a trespass.

    2. Well, the only other existing alternative example to precedent is worse. We could live under Napoleanic Code law where, literally, if it is not explicitly permitted it is forbidden.

      1. Haven’t researched it, but someone said Louisiana (I believe) law wasn’t based upon precedent. From what I can tell, precedent just makes things “fair” for everyone with regard to how law/sentencing is enforced.

        Perhaps a system could be set up that relies on precedent for criminal matters and doesn’t with regard to Constitutional matters?

        As it stands, once the Nazgul have spoken, you can never undo the damage they’ve done.

  12. bobnpvine1
    4/17/2014 8:11 PM EDT [Edited]
    Let’s get real here…

    One man’s “liberty” is another’s oppression…

    Here’s a prime example… Gun rights… We live in rural southern North Carolina… It’s basically agribusiness around here but there are a lot of who live here, too… So the gun “liberty” people come out here with their AK47s and AR15s and set up less than 100 yards from our house and blast away thousands of rounds on any any given weekend… No, there is no “shooting range” there… Just a bank they shoot into…

    Bang, bang, bang, bang, bang, bang, bang… Hour after hour of what sounds like machine gun fire so close that it might as well be happening right next to you…

    Our kids won’t allow our grand kids to visit us for fear of a ricochet…

    Whose liberty trumps whoms here??? The police say their “liberty” to shoot their guns trumps our “liberty” to have peaceful enjoyment of our own property???

    And this is going on in every rural community in America as gun owners “liberty” is more important than anyone elses…


    1. bobnpvine1
      4/17/2014 8:15 PM EDT
      Yup, and I lived in the coutry since 1985 and it has never been this bad…

      Bang, bang, bang, bang, bang, bang, bang…

      Makes me want to get a mortar and lob a few rounds over the creek at these boorish people…

      They know we live here and they don’t give a rip…


      4/17/2014 8:19 PM EDT
      I wish it were my right… I can’t do a danged thing…

      Just another ruined Saturday… If I shoot one of these morons I go to jail…

      If it were legal to retaliate, I’d at least take my 12 gauge and give them a pellet rain…


      1. So his response to a non-violent action is intentional violence? That sounds reasonable.

          1. No but I did see the post last night where he was pretty explicit that allowing poor people/oppressed minorities to have guns was a bad thing.

          2. That was quite telling. He kept saying shit without looking in the mirror first.

          3. My favorite slip of Tony’s mask:

            What is the point of talking about individuals in a political context?

      2. Bob is a baboon?

        1. Seriously. Heaven forbid he walk his ass over there and see if they are willing to at least limit their times that they are shooting.

          With the way ammo prices and availability have been for the last few years, I’m surprised that they are shooting as much as he claims they are.

          1. Or go over and have a beer with his neighbors, maybe some seared meats, and try out a few shots himself.

            You move out into the country and then complain that your neighbors are doing the things people do in the country.

    2. This is not really a 2nd amendment issue. Your right to keep and bear arms does not eliminate a state’s right to limit where and when a gun may be discharged. Keeping and bearing is not the same as firing.

  13. perhaps_naught
    4/17/2014 8:02 PM EDT
    Gabriel Garc?a M?rquez died. Do you think, even though he didn’t live in America, he wasn’t free? America doesn’t have a monopoly on freedom, but it sure has one on jingoism…

  14. And the coup de grace.

    4/17/2014 7:31 PM EDT
    It’s ‘We the People’, George, not ‘We the Corporations’.

    1. “It’s ‘We the People’, George, not ‘We the Corporations’.”

      Government by bumper sticker!
      No thought required…

    2. Argh. I read the comments at the WaPo because I hate myself.

  15. It’s not the President that needs armed guards.

    It’s the Constitution. You literally need to have someone stand next to it and yell ‘back off!’

    1. If only. It would be nice if words had magical powers like that, but sadly they don’t.

  16. “Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.”

    Strawman or false equivalence.
    For it to be true, we need an example of such conservative complaints.

    1. You want examples of conservatives denouncing ‘judicial activism’ in general?

      1. “You want examples of conservatives denouncing ‘judicial activism’ in general?”

        The claim is ‘indiscriminate’ denunciations; examples, please.

        1. Would criticisms and denunciations aimed at judges who “legislate from the bench” count?

  17. “Judicial Activism” can best be described as the principle that it is the judge’s job to protect individual rights even if that is at the expense of interpreting the law or the Constitution as written. Thus, an “activist” judge is a judge whom interprets the law and constitution in such a way that it always protects whatever he or she most values, such as “individual rights” or “equality”, even if doing so means adopting contradictory theories of textual interpretation from one case to the next or reading things into the text that were never intended by the drafters to be there.

    The point is not debate the subjective rightness or wrongness of such an approach. The point is that the approach, whatever you think of it, relates to how the law itself is read. It really has nothing to do with the willingness of a judge to invalidate legislative action. An activist judge will often uphold legislative action if that judge feels it advances the values he considers most important. What makes the judge “activist” is the willingness to adopt whatever textual interpretation necessary to reach the desired result, not the willingness to overturn or uphold legislative action.

    1. Unfortunately, this definition seems to have been lost in this debate. “Activist judge” has no been defined by the judge’s willingness to overturn legislation or previous precedent alone instead of their approach to statutory and constitutional interpretation. A judge could have an extremely narrow and consistent view of the Constitution and spend his days and nights invalidating statutes that didn’t fit this view and he would not be an “activist judge”. If he were, then any judge who thinks his duty is to invalidate unconstitutional laws is “activist”. In contrast, a judge who felt that the entire document should be given the interpretation that creates the greatest equality, history, common meaning, previous understanding and logical consistency be be damned, could spend his days and affirming statutes because they achieved “equality” in his view is an activist judge.

      Somehow “activist” has been transformed from “the propensity of a judge who engages in results based jurisprudence” to “the willingness of a judge to invalidate the action of a legislature regardless of his reasoning”. That is wrong and hopelessly obscures the debate.

      1. “That is wrong and hopelessly obscures the debate.”


    2. But this is just to say that ‘judicial activism’=’an interpretation supported by bias and not the law.’ But everyone thinks that of those decisions they think are wrong, correct?

      1. No. Some people think that the Constitution doesn’t have a steady or intended meaning and should be interpreted by current meaning and for the purpose of advancing current priorities. That means you interpret the Constitution in such a way that best advances whatever current values are. If current values say that we need to protect gays, then the Constitution is interpreted to reflect that. The judge of course decides what the current values are and how to interpret the document to ensure that.

        That is judicial activism. The judge is an “activist” trying to interpret the document to achieve a stated end. Being that way has nothing to do with how many statutes you over turn. The legislature could be passing statutes you like that further your end and you will of course be affirming them. Your propensity to invalidate statutes has nothing to do with you being an “activist”.

        1. You are caricaturizing. I do not know of a single SCOTUS justice whose stated philosophy is as you describe it in your first paragraph.

          For example, those who argue that gay marriage bans violate the 14th honestly think that they are being true to the language in the text. Whereas you think that language is best understood by what the ratifiers thought the application of the law would be or expected it to be, they think they should be guided by the principles of the text itself. So they would say ‘of course those that ratified the 14th did not think it meant gay marriages should be recognized, but who cares? The words say ‘equal protection’ and the concept of equal protection demands this.’ Maybe they are right, maybe they are wrong, but it is not what you make it out to be.

          1. You are just telling me “decisions I don’t like are not ‘activist'”. Maybe so. I am never going to convince you otherwise since you view ‘activist’ as necessarily pejorative when really it is not.

            Regardless, the larger point still stands, that whether someone is an ‘activist’ judge or not has nothing to do with how many or how willing they are to invalidate statutes. A judge could be the least activist judge imaginable and still spend his entire career invalidating statutes. To define “activist” as “willing to invalidate statutes” then any judge willing to stop a rogue legislature is “activist” or in other words any judge who does his duty is an “activist”. And that robs the term of all meaning.

            This is relevent because whenever any judge anywhere invalidates a statute, the losing side calls that judge an ‘activist judge’ as if the mere act of invalidating a statute makes him so. That of course obscures the debate. More importantly, it is more often than not a charge hurled at a right leaning judge who invalidates a Progressive policy as evidence of “hypocrisy”. More of these debates are just leftists saying that the other side can’t ever invalidate a progressive statute without being hypocrites.

            1. “You are just telling me “decisions I don’t like are not ‘activist'”. ”

              No, you are doing the flip side of that, arguing that if you think the reasoning of a decision is derived from the constitution then it must not be activist. Every justice claims and is going to claim that their decision flows from the Constitution itself, so in order to declare this or that one activist you have to decide which one ‘really’ does and which ones ‘really’ do not, and that just reflects your judicial philosophy. So, for you, ‘activist’ really does just mean ‘I think they are wrong (not result wise, but reasoning wise).’ If that is all activist means then it is a pretty subjective and useless term.

              “since you view ‘activist’ as necessarily pejorative”

              Where do you get that from?

              “it is more often than not a charge hurled at a right leaning judge who invalidates a Progressive policy as evidence of “hypocrisy”.”

              Actually, as Will himself notes it actually was and is common on the Right.

            2. One thought. Should judicial activism necessarily be considered a bad thing? Most of the definitions people are putting forth here are limiting what is considered activism to bad things like “living constitution” bullcrap. I don’t think it is entirely unreasonable to include striking down laws in activism. The very power of the courts to strike down laws on a constitutional basis is based on a pretty big act of judicial activism. The constitution doesn’t explicitly give the supreme court that power.

          2. I do not know of a single SCOTUS justice whose stated philosophy is as you describe it in your first paragraph.

            Just because it’s not their stated philosophy doesn’t mean it’s not what they do.

            1. Sure, but in order to argue that is what they are ‘really’ doing you essentially are just saying ‘their reasoning is untenable,’ which is just a way of saying they are wrong. So ‘activist’ ends up being ‘makes decisions I think are wrong.’

              1. I didn’t say that’s what they are doing. I was simply pointing out that stated intentions and actions are not necessarily the same thing.

      2. Not being a judicial activist means judging on some consistent standard of interpretation, be that original intent, contextual meaning, common understanding, whatever and applying it regardless of what actual results that produces. Again, you could apply a consistent method and if the legislature is on a bender, invalidate all kinds of laws without being an “activist”. If nuclear weapon went off tomorrow and the country went crazy and started passing all kinds of laws against Muslims, the judge or judges who invalidated those laws because in their view the equal protection clause has never and was never intended to allow an exception for “in times of emergency” would not be “judicial activists” no matter how many statutes they invalidated. In contrast, the judges who read the clause’s meaning to be malleable such that it doesn’t include Muslims because safety is really important in this time of emergency, would be.

        The point is not to debate which side is right. The point is that which side is “activist” has nothing to do with the willingness to invalidate statutes.

        1. I think John’s definition is a very good one. I also think that a lot of people use the term rather differently to refer to any decision they don’t like, including those invalidating statutes.

  18. To put it in simple terms, my reading the Constitution and deciding that based on the history and the meaning of the terms the commerce clause the post New Deal court decisions are wrong, doesn’t make me an “activist judge”. You may not agree with me, but any attempt to read the document as written and intended is not “activist”. My saying that the post New Deal jurisprudence is wrong because it produced bad results or fostered various bad values in society and therefore the meaning of the Constitution must be changed to fix this makes me an activist judge. Activist judging to advance whatever your pet cause is instead of doing your best to interpret the statute or constitution as intended.

  19. Sandefur, a principle attorney at the Pacific Legal Foundation


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