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The Michigan Messenger going forward

By Staff Report | 11.16.11

I am writing today to announce the closure of the Michigan Messenger. After four years of operation in Michigan, the board of the American Independent News Network, has decided to shift publication of its news into a single site, The American Independent at Americanindependent.com. This is part of a shift in strategy, towards new forms [...]

Colorado-based abstinence program provided false and misleading information to Michigan students

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By Todd A. Heywood | 11.16.11

An abstinence-only presentation provided to numerous school districts in Calhoun and Eaton Counties in October of this year provided false and misleading information to students about HIV, experts allege.

Class action lawsuit filed against MERS over unpaid taxes

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By Todd A. Heywood | 11.15.11

Two county registers of deeds filed a class action lawsuit Monday on behalf of Michigan’s 83 counties alleging that the Mortgage Electronic Registration Services owes millions of dollars in property title transfer taxes.

Schuette fights important mercury regulations

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By Eartha Jane Melzer | 11.14.11

Despite evidence of the impact of mercury on children and public health, Michigan Attorney General Bill Schuette last month joined with 24 other state attorneys general in filing a lawsuit to scuttle new EPA regulations that would reduce mercury emissions from power plants.

‘Activist judges’ is meaningless rhetoric

By Ed Brayton | 08.21.08 | 2:41 pm

Ready to judge (source: John and Keturah via Flickr.com)

Ready to judge (source: John and Keturah via Flickr.com)

Commonly heard argument from Republicans adds no substance to disputes over court rulings

Tom Casperson is running for the U.S. House seat currently occupied by Democratic Congressman Bart Stupak. Casperson has an issues page on his campaign Web site that contains an internally contradictory statement about his views on the Supreme Court. And because his statement is typical of conservative rhetoric on judicial questions, it makes an excellent jumping-off point for a deeper look at conservative theories of constitutional interpretation, as well as the arguments used to defend that interpretation. His statement:

Judiciary and Tort Reform

I understand that the next Supreme Court nominations are crucial for this country. I believe strongly in judges who follow the laws and Constitution of the United States. I will fight against activist judges and lawsuits that obstruct the will of the people.

It would be easy to just laugh off such rhetoric as being empty and meaningless. Who, after all, doesn’t believe judges should follow the laws and the Constitution? That tells us nothing at all when we disagree on the meaning of the Constitution. And what in the world do lawsuits have to do with obstructing the will of the people?

But this is the kind of rhetoric that we hear often from the right — “activist judges” thwarting the “will of the people.” So it’s worth taking a closer look at this rhetoric and seeing whether this notion is applied consistently in real life.

The first contradiction ought to be the most obvious: If a judge is going to follow the Constitution, he is often going to have to obstruct the will of the people. After all, that is the entire purpose of the Bill of Rights and the most important job the courts have, striking down laws that are contrary to the Constitution. This concept was so important that Alexander Hamilton, in the course of explaining and defending the judicial provisions of the new Constitution in Federalist 78, wrote that without it the very notion of rights would be negated:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

But there is a second level of contradiction buried in this rhetoric — it also conflicts with the reality of conservative behavior.

Whenever a court ruling comes down that strikes down a law that they support, we hear howls of outrage over those “unelected judges subverting the will of the people.” But when the “will of the people” goes the other way, conservatives are more than happy to file suit and go to court to ask those same unelected judges to overturn a law.

There are many examples of this. In Oregon, for instance, the voters passed an assisted suicide law by referendum, not once but twice. The clearly expressed will of the people, even when expressed directly rather than through a representative legislature, did not prevent conservative groups from filing a federal lawsuit to demand that those very unelected judges that they condemn so often overturn the law that was democratically passed. The same is true of California’s medical marijuana law and many other laws passed either by popular referendum or by legislatures.

The phrase “judicial activism” (and its cognate, “activist judges”) has become a ubiquitous arrow in the rhetorical quiver of the right, but it’s a phrase that few legal scholars take seriously. Keenan Kmiec, a conservative legal scholar himself, wrote a seminal 2004 article in the California Law Review that traced the origin and evolution of the term. He notes that as the term has become increasingly popular it has also become less meaningful:

Ironically, as the term has become more commonplace, its meaning has become increasingly unclear. This is so, because “judicial activism” is defined in a number of disparate, even contradictory, ways; scholars and judges recognize this problem, yet persist in speaking about the concept without defining it. Thus, the problem continues unabated: people talk past one another, using the same language to convey very different concepts.

Kmiec went through several different usages of the term and shows that each of them has limitations and self-contradictory elements. He notes that it is primarily being used in political rhetoric as a pejorative rather than as a serious argument, adding little of substance to the discussion:

Thus, one problem with using “judicial activism” as a pejorative, as critics of the Warren Court often do, is that it confuses the issues. Using “activist” as a substitute for “bad” elides important differences between the two labels; it fails to elucidate the specific ways in which a judicial opinion is improper, harmful, or wrong.

When looking at any particular ruling, merely calling the decision “activist” or arguing that it violates “the will of the people” means nothing at all. It does not indicate in any way whether the decision was correct or incorrect, or why it might be either one.

Comments

  • http://www.danielgrow2008.com Daniel Grow

    Daniel Grow, Libertarian candidate for U.S. House, 1st District (running against Stupak/Casperson)-

    I'd only add that “judicial activism,” whether that be a meaningful term or not, shouldn't be the issue. Instead I'd note that given the principle of government—judicial monopoly and the power to tax—any notion of restraining government power and safeguarding individual life and property is illusory. Under monopolistic auspices, the price of justice and protection will rise and the quality of justice and protection will fall. A tax-funded protection agency is a contradiction in terms—an expropriating property protector—and will lead to more taxes and less protection. Even if a government limited its activities exclusively to the protection of pre-existing property rights, the further question of how much security to produce would arise. Motivated (like everyone else) by self-interest and the disutility of labor, but with the unique power to tax, a government agent’s answer will invariably be the same: to maximize expenditures on protection—and almost all of a nation’s wealth can conceivably be consumed by the cost of protection—and at the same time to minimize the production of protection. Moreover, a judicial monopoly will lead to a deterioration in the quality of justice and protection. If one can only appeal to government for justice, justice and protection will be perverted in favor of government, constitutions and supreme courts notwithstanding. Constitutions and supreme courts are government constitutions and courts, and whatever limitations to government action they might contain or find is determined by agents of the very institution under consideration. Predictably, the definition of property and protection will be altered and the range of jurisdiction expanded to the government’s advantage.

    The idea of a “limited” protective state is self-contradictory and incompatible with the promotion of social utility. Limited government always has the inherent tendency to become unlimited (totalitarian) government. Political philosophers and economists, from Thomas Hobbes to James Buchanan, have attempted portray the state as the outcome of contracts, and hence, a voluntary and welfare-enhancing institution. They have tried to overcome the apparent contradiction in the idea of a “voluntary” state equipped with compulsory judicial monopoly and the power to tax by recourse to the intellectual make-shift of “implicit” or “conceptual” agreements, contracts, or constitutions. These tortuous attempts ultimately only lead to the same inescapable conclusion: “implicit” and “conceptual” contracts are the very opposite of contracts, i.e., no contracts. It is impossible to derive a welfare-economic justification for the state. No one can possibly—demonstrably—agree to permanently surrender jurisdiction over his person and private property to someone else unless he had sold or otherwise given all of his current possessions away and subsequently committed suicide; likewise no one who is alive, can possibly—demonstrably—enter a contract that permits someone else—his protector—to determine for ever unilaterally, without the continued consent of the protected, the tribute that the protected must pay for his protection. (I give credit to Murray N. Rothbard: Economics, Science, and Liberty” by Hans-Hermann Hoppe, for this analysis.)

  • http://miconservative.blogspot.com Joe Sylvester

    And what in the world do lawsuits have to do with obstructing the will of the people?
    I will use one acronym as an answer to your question: M.C.R.I

    There is no problem with the point Mr Casperson is trying to make, only the syntax of how he presented it.

    Generally when progressives or liberals sue it clearly is an attempt to stretch the constitution beyond it clear original stated intent. When conservatives (you must distinguish between actually “conservative groups,” and groups which are single issue and hold what you believe to be a conservative position) sue, usually, it is because a perceived accepted practice is being abridged.

    Go through the process to change the constitution…and that process is not via the courts. That is what Mr Casperson is saying.

    • ebrayton

      Joe Sylvester wrote:

      Generally when progressives or liberals sue it clearly is an attempt to stretch the constitution beyond it clear original stated intent. When conservatives (you must distinguish between actually “conservative groups,” and groups which are single issue and hold what you believe to be a conservative position) sue, usually, it is because a perceived accepted practice is being abridged.

      Oh nonsense. This is the typical partisan move of interpreting the actions of groups one agrees with in the most positive manner possible while interpreting the actions of groups one disagrees with in the most negative manner possible. And I presume you're talking here about constitutional lawsuits seeking injunctive or declarative relief rather than lawsuits for monetary damages against corporations or individuals (it is the latter that is generally the target of tort reform, not the former). When it comes to constitutional lawsuits, both sides file suits when they believe the constitution has been violated; that they disagree on the meaning of the constitution does not indicate that one side is trying to subvert the constitution while the other is trying to uphold it.

      • http://miconservative.blogspot.com Joe Sylvester

        interpreting the actions of groups one disagrees with in the most negative manner possible.

        I must have missed the intent of this entire website. It is to paint anyone or thing that is conservative in a negative light. Your articles always look down on, or try to make people of faith seem stupid.

        And I didn't say they were trying to subvert, I said that they are looking for a very loose interpretation to suit their needs.

        • ebrayton

          Joe Sylvester wrote:

          I must have missed the intent of this entire website. It is to paint anyone or thing that is conservative in a negative light. Your articles always look down on, or try to make people of faith seem stupid.

          You seem to have leaped from “conservative” to “people of faith” as though those two groups were synonymous. They're not. I do critique the beliefs and actions of what we might call the religious right quite frequently. My critiques are accurate and that is all that matters. You've said absolutely nothing of substance here at all. Your comments can be summed up as “you're a bunch of liberals,” which is what I call the argumentum ad labelum. Labeling an argument does not answer the argument. If you think I'm wrong about something, offer a substantive argument for why I'm wrong and we can discuss it.

          And I didn't say they were trying to subvert, I said that they are looking for a very loose interpretation to suit their needs.

          As though conservatives don't do this? Let's look at what you actually said:

          Generally when progressives or liberals sue it clearly is an attempt to stretch the constitution beyond it (sic) clear original stated intent.

          You seem quite confused here. First of all, written words do not have intent; those who write them might. But you're not keeping up with the conservative talking points very well because “original intent” as a theory of constitutional interpretation was rejected even by conservatives a couple decades ago (Scalia long ago stopped talking about original intent). There are multiple forms of originalism and original intent is not taken serious by legal scholars. Most conservatives opt for what Randy Barnett calls “original expected application” but that's not a sound theory either. The concept that comes closest to being compelling as an interpretive theory is “original public meaning,” which is distinct from the intent of those who wrote it. Even better is “liberal originalism” (liberal meaning classical liberal, not partisan or pedestrian liberal), advocated by legal scholars like Randy Barnett and my friend Timothy Sandefur.

          Anyway, back to your point. The fact is that conservative originalists are just as prone as liberal judges to stretch the original public meaning of a constitutional provision to reach a desired outcome. They're also just as likely to engage in penumbral reasoning despite their popular bashing of such reasoning when it leads to conclusions they don't like. The entire artifice of standing doctrine, for example, is built on virtually no textual support in the constitution but that does not prevent conservative judges from using it to get rid of cases that might not turn out the way they want (example: last year's Hein case on taxpayer standing). If you want a textbook example of perhaps the leading conservative originalist in the nation abandoning his own alleged originalism in order to get the outcome he wants, look no further than Justice Scalia's concurrence in Raich. Clarence Thomas quite correctly blasted Scalia for playing precisely the kind of interpretive games he has long accused liberals of playing.

  • http://miconservative.blogspot.com Joe Sylvester

    interpreting the actions of groups one disagrees with in the most negative manner possible.

    I must have missed the intent of this entire website. It is to paint anyone or thing that is conservative in a negative light. Your articles always look down on, or try to make people of faith seem stupid.

    And I didn't say they were trying to subvert, I said that they are looking for a very loose interpretation to suit their needs.

  • ebrayton

    Joe Sylvester wrote:

    I must have missed the intent of this entire website. It is to paint anyone or thing that is conservative in a negative light. Your articles always look down on, or try to make people of faith seem stupid.

    You seem to have leaped from “conservative” to “people of faith” as though those two groups were synonymous. They're not. I do critique the beliefs and actions of what we might call the religious right quite frequently. My critiques are accurate and that is all that matters. You've said absolutely nothing of substance here at all. Your comments can be summed up as “you're a bunch of liberals,” which is what I call the argumentum ad labelum. Labeling an argument does not answer the argument. If you think I'm wrong about something, offer a substantive argument for why I'm wrong and we can discuss it.

    And I didn't say they were trying to subvert, I said that they are looking for a very loose interpretation to suit their needs.

    As though conservatives don't do this? Let's look at what you actually said:

    Generally when progressives or liberals sue it clearly is an attempt to stretch the constitution beyond it (sic) clear original stated intent.

    You seem quite confused here. First of all, written words do not have intent; those who write them might. But you're not keeping up with the conservative talking points very well because “original intent” as a theory of constitutional interpretation was rejected even by conservatives a couple decades ago (Scalia long ago stopped talking about original intent). There are multiple forms of originalism and original intent is not taken serious by legal scholars. Most conservatives opt for what Randy Barnett calls “original expected application” but that's not a sound theory either. The concept that comes closest to being compelling as an interpretive theory is “original public meaning,” which is distinct from the intent of those who wrote it. Even better is “liberal originalism” (liberal meaning classical liberal, not partisan or pedestrian liberal), advocated by legal scholars like Randy Barnett and my friend Timothy Sandefur.

    Anyway, back to your point. The fact is that conservative originalists are just as prone as liberal judges to stretch the original public meaning of a constitutional provision to reach a desired outcome. They're also just as likely to engage in penumbral reasoning despite their popular bashing of such reasoning when it leads to conclusions they don't like. The entire artifice of standing doctrine, for example, is built on virtually no textual support in the constitution but that does not prevent conservative judges from using it to get rid of cases that might not turn out the way they want (example: last year's Hein case on taxpayer standing). If you want a textbook example of perhaps the leading conservative originalist in the nation abandoning his own alleged originalism in order to get the outcome he wants, look no further than Justice Scalia's concurrence in Raich. Clarence Thomas quite correctly blasted Scalia for playing precisely the kind of interpretive games he has long accused liberals of playing.

  • http://miconservative.blogspot.com Joe Sylvester

    interpreting the actions of groups one disagrees with in the most negative manner possible.

    I must have missed the intent of this entire website. It is to paint anyone or thing that is conservative in a negative light. Your articles always look down on, or try to make people of faith seem stupid.

    And I didn't say they were trying to subvert, I said that they are looking for a very loose interpretation to suit their needs.

  • ebrayton

    Joe Sylvester wrote:

    I must have missed the intent of this entire website. It is to paint anyone or thing that is conservative in a negative light. Your articles always look down on, or try to make people of faith seem stupid.

    You seem to have leaped from “conservative” to “people of faith” as though those two groups were synonymous. They're not. I do critique the beliefs and actions of what we might call the religious right quite frequently. My critiques are accurate and that is all that matters. You've said absolutely nothing of substance here at all. Your comments can be summed up as “you're a bunch of liberals,” which is what I call the argumentum ad labelum. Labeling an argument does not answer the argument. If you think I'm wrong about something, offer a substantive argument for why I'm wrong and we can discuss it.

    And I didn't say they were trying to subvert, I said that they are looking for a very loose interpretation to suit their needs.

    As though conservatives don't do this? Let's look at what you actually said:

    Generally when progressives or liberals sue it clearly is an attempt to stretch the constitution beyond it (sic) clear original stated intent.

    You seem quite confused here. First of all, written words do not have intent; those who write them might. But you're not keeping up with the conservative talking points very well because “original intent” as a theory of constitutional interpretation was rejected even by conservatives a couple decades ago (Scalia long ago stopped talking about original intent). There are multiple forms of originalism and original intent is not taken serious by legal scholars. Most conservatives opt for what Randy Barnett calls “original expected application” but that's not a sound theory either. The concept that comes closest to being compelling as an interpretive theory is “original public meaning,” which is distinct from the intent of those who wrote it. Even better is “liberal originalism” (liberal meaning classical liberal, not partisan or pedestrian liberal), advocated by legal scholars like Randy Barnett and my friend Timothy Sandefur.

    Anyway, back to your point. The fact is that conservative originalists are just as prone as liberal judges to stretch the original public meaning of a constitutional provision to reach a desired outcome. They're also just as likely to engage in penumbral reasoning despite their popular bashing of such reasoning when it leads to conclusions they don't like. The entire artifice of standing doctrine, for example, is built on virtually no textual support in the constitution but that does not prevent conservative judges from using it to get rid of cases that might not turn out the way they want (example: last year's Hein case on taxpayer standing). If you want a textbook example of perhaps the leading conservative originalist in the nation abandoning his own alleged originalism in order to get the outcome he wants, look no further than Justice Scalia's concurrence in Raich. Clarence Thomas quite correctly blasted Scalia for playing precisely the kind of interpretive games he has long accused liberals of playing.

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