Here is the view of one 9th Circuit "activist" Judge on Substantive Due Process. It's a tragedy that liberal activists have taken over the judiciary and used SDP to create new rights out of whole cloth, with no Constitutional foundation whatsoever. It's a good thing we've had Bush the past 8 yrs to nominate judges like Bill Pryor, Michael McConnell, and Janice Rogers Brown who will help to right the ship. It's clear that anyone who would feel the way this liberal, pro abortion/pro gay rights/pro secularism/pro socialism activist appointed by Bill Clinton does has no place interepreting the Constiution:
BEGIN QUOTE:The prevalence and permanence of this newly fledged feudal consciousness is a puzzle that led me — by a very circuitous path — to a new understanding of (or at least a new way of thinking about) the judicial role. I initially accepted the conventional wisdom that substantive due process was a myth invented by judicial activists who were up to no good. You all know the drill. Substantive due process is an oxymoron and Lochnerism is the strongest pejorative known to American law.
There are at least two problems with dismissing the idea of substance in the due process clause. First, substantive due process is still around, cleverly disguised as fundamental rights jurisprudence. Second, even conservative judges who take the rule of law seriously are appalled by legislative actions which violate the whole spirit, if not quite the letter, of provisions clearly designed to limit government. And most significantly, if we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a Kleptocracy — a license to steal, a warrant for oppression.
Much to my surprise, when I actually began to investigate the question, I found a small but credible body of scholarship suggesting that, in our history, the due process clause was viewed as a restraint on government, fashioned, in part, to protect the rights of property owners. Apparently, the colonists saw in the due process clause a guarantee which had a wide, varied, and indefinite content. The concept of due process like the words “the law of the land” in the Magna Carta put some liberties and some property interests beyond the power of government. Moreover, the language of the Constitution suggests the drafters clearly distinguished between the limited framework of that document and the whole law.
This revelation was what’s known in the precise, technical language of the judge’s trade as an “uh-oh.” It slowly dawned on me that the problem may not be judicial activism. The problem may be the world view — amounting to an altered political and cultural consciousness — out of which the judges now fashion their decisions.
At its founding and throughout its early history, this regime revered private property. The American philosophy of the Rights of Man relied heavily on the indissoluble connection between rationality, property, freedom, and justice. The Founders viewed the right of property as “the guardian of every other right” and reasoned that “to deprive a people of this right is in fact to deprive them of their liberty.” The idea of constitutional government is deceptively simple: the government cannot legitimately infringe upon our rights even if the majority votes to do so.
But, by 1890, attitudes had changed radically enough for Alfred Marshall, the teacher of John Maynard Keynes, to make “the astounding claim that the need for private property ‘reaches no deeper than the qualities of human nature.’” A hundred years later came Milton Friedman’s laconic reply: “‘I would say that goes pretty deep.’” Marshall’s statement, however, signaled a seachange: a political and cultural shift from the American vision of humans as free and creative beings entitled to enjoy the fruits of individual effort back to the tribal view of man which continues to dominate European political philosophy. “Europe’s predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as a slave to the absolute state as embodied by the ‘the people’—i.e., switching from slavery to a tribal chieftain into slavery to the tribe.” America sought to make government subservient to the people; the collectivist impulse which gained preeminence in Europe sought to keep people subservient to the government.
It is, I believe, this shift in world view which causes us to dread judicial activism. In short, we have been fixated on the structure’s gingerbread trim when we should have been focusing on its foundations.END QUOTE
It's a good thing that we don't have more activist judges like this and that Bush has appointed judges who follow the Constitution. This is precisely the type of judge that the Federalist Scoiety was formed to combat and that conservatives like Bork, Mark Levin, and Rush Limbaugh have railed against for years. No conservative worth his salt could ever want a judge like this on the SC or even on an appeals or district court. I take solace in the knowledge that if this Judge were ever nominated to the SC by Hillary or Mark Warner that the conservatove blogosphere, interest groups and talk radio would be out in force to stop her from being confirmed
BEGIN QUOTE:The prevalence and permanence of this newly fledged feudal consciousness is a puzzle that led me — by a very circuitous path — to a new understanding of (or at least a new way of thinking about) the judicial role. I initially accepted the conventional wisdom that substantive due process was a myth invented by judicial activists who were up to no good. You all know the drill. Substantive due process is an oxymoron and Lochnerism is the strongest pejorative known to American law.
There are at least two problems with dismissing the idea of substance in the due process clause. First, substantive due process is still around, cleverly disguised as fundamental rights jurisprudence. Second, even conservative judges who take the rule of law seriously are appalled by legislative actions which violate the whole spirit, if not quite the letter, of provisions clearly designed to limit government. And most significantly, if we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a Kleptocracy — a license to steal, a warrant for oppression.
Much to my surprise, when I actually began to investigate the question, I found a small but credible body of scholarship suggesting that, in our history, the due process clause was viewed as a restraint on government, fashioned, in part, to protect the rights of property owners. Apparently, the colonists saw in the due process clause a guarantee which had a wide, varied, and indefinite content. The concept of due process like the words “the law of the land” in the Magna Carta put some liberties and some property interests beyond the power of government. Moreover, the language of the Constitution suggests the drafters clearly distinguished between the limited framework of that document and the whole law.
This revelation was what’s known in the precise, technical language of the judge’s trade as an “uh-oh.” It slowly dawned on me that the problem may not be judicial activism. The problem may be the world view — amounting to an altered political and cultural consciousness — out of which the judges now fashion their decisions.
At its founding and throughout its early history, this regime revered private property. The American philosophy of the Rights of Man relied heavily on the indissoluble connection between rationality, property, freedom, and justice. The Founders viewed the right of property as “the guardian of every other right” and reasoned that “to deprive a people of this right is in fact to deprive them of their liberty.” The idea of constitutional government is deceptively simple: the government cannot legitimately infringe upon our rights even if the majority votes to do so.
But, by 1890, attitudes had changed radically enough for Alfred Marshall, the teacher of John Maynard Keynes, to make “the astounding claim that the need for private property ‘reaches no deeper than the qualities of human nature.’” A hundred years later came Milton Friedman’s laconic reply: “‘I would say that goes pretty deep.’” Marshall’s statement, however, signaled a seachange: a political and cultural shift from the American vision of humans as free and creative beings entitled to enjoy the fruits of individual effort back to the tribal view of man which continues to dominate European political philosophy. “Europe’s predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as a slave to the absolute state as embodied by the ‘the people’—i.e., switching from slavery to a tribal chieftain into slavery to the tribe.” America sought to make government subservient to the people; the collectivist impulse which gained preeminence in Europe sought to keep people subservient to the government.
It is, I believe, this shift in world view which causes us to dread judicial activism. In short, we have been fixated on the structure’s gingerbread trim when we should have been focusing on its foundations.END QUOTE
It's a good thing that we don't have more activist judges like this and that Bush has appointed judges who follow the Constitution. This is precisely the type of judge that the Federalist Scoiety was formed to combat and that conservatives like Bork, Mark Levin, and Rush Limbaugh have railed against for years. No conservative worth his salt could ever want a judge like this on the SC or even on an appeals or district court. I take solace in the knowledge that if this Judge were ever nominated to the SC by Hillary or Mark Warner that the conservatove blogosphere, interest groups and talk radio would be out in force to stop her from being confirmed
posted by SarahWeddington | 2:21 PM
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