I know the liberals live in a different plane of reality, but still, this one leaves me slack-jawed. A strict judicial interpretaion of the Constitution is considered "judicial activism"?? I gotta frame this one.
http://www.cleveland.com/news/opinion/index.ssf?/news/opinion/columns/other/g14dionn.html
Liberals fear new judicial activism
By E.J. Dionne Jr.
WASHINGTON
Attacks on "the imperial judiciary" were once the stuff of conservative arguments against a "liberal activist" Supreme Court. That is about to change.
In a shift that is momentous in historical and political terms, liberals are beginning to sound alarms about conservative justices using states’ rights and other doctrines to void environmental, economic and social legislation.
The liberal fear is that the Supreme Court is marching back to its pre-New Deal days when justices relied on strict interpretations of property and contract rights - and narrow interpretations of governmental authority - to strike down laws on wages, hours and other forms of business regulation.
The first signs of the new disposition have come on relatively narrow issues. This year, the court struck down a law that allowed the victims of rape and domestic violence to sue their attackers in federal court. The court said this was a state issue. It also said state employees couldn’t use federal laws to bring age discrimination suits against their state governments.
What these actions have in common is a direct challenge by the Supreme Court to the power of Congress. "The court has imposed by fiat limitations on the exercise of federal power," said Sen. Joseph Biden, the former Judiciary Committee chairman who is planning to give two speeches in the next month challenging the court’s "imperial" direction.
"The Supreme Court, in case after case, is freely imposing its own view of sound public policy - not constitutional law, but public policy," Biden said in an interview this week. "What is at issue here is a question of power, whether power will be exercised by an insulated judiciary or by the elected representatives of the people."
Biden, a Delaware Democrat, acknowledges that the phrase "judicial activism" has "often been used by conservatives to criticize liberal judges." But "under this Supreme Court, the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own."
Biden’s argument is important because he is speaking not just for himself, but for an entire school of judges and legal scholars who fear that the court may be on the road to invalidating many years of regulatory legislation.
On the court itself, Justices David Souter, Stephen Breyer and John Paul Stevens have raised questions about the trend. Souter, for example, has warned of "a return to the untenable jurisprudence from which the court extricated itself almost 60 years ago."
David Strauss, a law professor at the University of Chicago, argues that what unites many of the recent decisions and arguments is a desire to undermine regulation, whether enacted by Congress, state legislatures or voter referenda. The trend, he says, involves "aggressive interpretation of federal statutes where they pre-empt state regulation," and "narrow interpretation" of federal regulatory statutes.
"I don’t think they care about the states, they want to get rid of regulation," Strauss said. He argues that many judicial conservatives are more interested in advancing a new and stronger interpretation of property rights, than in safeguarding states’ rights.
Rep. Henry Waxman, a California Democrat who is a strong supporter of federal environmental and health rules, says the same inconsistency on states’ rights doctrines is not confined to the courts. He points to recent efforts to pass federal laws pre-empting state food safety regulations, such as California’s Proposition 65. The 1986 initiative requires warning labels disclosing whether products contain chemicals that cause cancer or birth defects.
Supporters of federal pre-emption are normally states’ rights advocates in other areas, Waxman says. But in this case, they "want to deny states the ability to act in their traditional spheres of authority, which is to protect the public health and safety."
But the biggest fights will be in the courts, and future Supreme Court appointments could prove decisive in this ongoing struggle. Many of the recent decisions overturning congressional enactments were on 5-4 votes. That raises the stakes in the debate between Al Gore and George W. Bush over the differences in the Supreme Court appointments each would make.
The public argument between Gore and Bush focuses largely on the abortion issue and whether Roe vs. Wade - seen by conservatives as a case of liberal overreach - will be retained or overturned. But Biden says for the long run, the more important argument will be over the new conservative judicial activism. The outcome of that debate will shape federal policies for decades to come.
Dionne is a columnist for the Washington Post.
E-mail: postchat@aol.com.
------------------
The New World Order has a Third Reich odor.
http://www.cleveland.com/news/opinion/index.ssf?/news/opinion/columns/other/g14dionn.html
Liberals fear new judicial activism
By E.J. Dionne Jr.
WASHINGTON
Attacks on "the imperial judiciary" were once the stuff of conservative arguments against a "liberal activist" Supreme Court. That is about to change.
In a shift that is momentous in historical and political terms, liberals are beginning to sound alarms about conservative justices using states’ rights and other doctrines to void environmental, economic and social legislation.
The liberal fear is that the Supreme Court is marching back to its pre-New Deal days when justices relied on strict interpretations of property and contract rights - and narrow interpretations of governmental authority - to strike down laws on wages, hours and other forms of business regulation.
The first signs of the new disposition have come on relatively narrow issues. This year, the court struck down a law that allowed the victims of rape and domestic violence to sue their attackers in federal court. The court said this was a state issue. It also said state employees couldn’t use federal laws to bring age discrimination suits against their state governments.
What these actions have in common is a direct challenge by the Supreme Court to the power of Congress. "The court has imposed by fiat limitations on the exercise of federal power," said Sen. Joseph Biden, the former Judiciary Committee chairman who is planning to give two speeches in the next month challenging the court’s "imperial" direction.
"The Supreme Court, in case after case, is freely imposing its own view of sound public policy - not constitutional law, but public policy," Biden said in an interview this week. "What is at issue here is a question of power, whether power will be exercised by an insulated judiciary or by the elected representatives of the people."
Biden, a Delaware Democrat, acknowledges that the phrase "judicial activism" has "often been used by conservatives to criticize liberal judges." But "under this Supreme Court, the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own."
Biden’s argument is important because he is speaking not just for himself, but for an entire school of judges and legal scholars who fear that the court may be on the road to invalidating many years of regulatory legislation.
On the court itself, Justices David Souter, Stephen Breyer and John Paul Stevens have raised questions about the trend. Souter, for example, has warned of "a return to the untenable jurisprudence from which the court extricated itself almost 60 years ago."
David Strauss, a law professor at the University of Chicago, argues that what unites many of the recent decisions and arguments is a desire to undermine regulation, whether enacted by Congress, state legislatures or voter referenda. The trend, he says, involves "aggressive interpretation of federal statutes where they pre-empt state regulation," and "narrow interpretation" of federal regulatory statutes.
"I don’t think they care about the states, they want to get rid of regulation," Strauss said. He argues that many judicial conservatives are more interested in advancing a new and stronger interpretation of property rights, than in safeguarding states’ rights.
Rep. Henry Waxman, a California Democrat who is a strong supporter of federal environmental and health rules, says the same inconsistency on states’ rights doctrines is not confined to the courts. He points to recent efforts to pass federal laws pre-empting state food safety regulations, such as California’s Proposition 65. The 1986 initiative requires warning labels disclosing whether products contain chemicals that cause cancer or birth defects.
Supporters of federal pre-emption are normally states’ rights advocates in other areas, Waxman says. But in this case, they "want to deny states the ability to act in their traditional spheres of authority, which is to protect the public health and safety."
But the biggest fights will be in the courts, and future Supreme Court appointments could prove decisive in this ongoing struggle. Many of the recent decisions overturning congressional enactments were on 5-4 votes. That raises the stakes in the debate between Al Gore and George W. Bush over the differences in the Supreme Court appointments each would make.
The public argument between Gore and Bush focuses largely on the abortion issue and whether Roe vs. Wade - seen by conservatives as a case of liberal overreach - will be retained or overturned. But Biden says for the long run, the more important argument will be over the new conservative judicial activism. The outcome of that debate will shape federal policies for decades to come.
Dionne is a columnist for the Washington Post.
E-mail: postchat@aol.com.
------------------
The New World Order has a Third Reich odor.