Obtuse Observer

February 3, 2011

Judicial Activism or Judicial Restraint?

President Obama’s staff recently chided Florida Federal Judge Roger Vinson with engaging in judicial activism.  The term is important to pin down. 

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When conservatives, originalists, constructionists et al aver the term they mean the court has, without legal authority, reshaped and expanded the law in order to give effect to an otherwise unconstitutional policy because the court believes that the otherwise unconstitutional law is sufficiently worthwhile; that is, they replace their subjective opinion of the value of the law with the objective opinion of its legality.  Justice Thurgood Marshall once responded to a question at a clerk lunch about his theory of the law with:

you do what you think is right and let the law catch up,”. 

However, a judge is to interpret the law not make it.  Assertions of activism arise from judicial intrusion upon legislative authority.  Belief in the propriety of a law is no basis for its legitimacy.  Authority must be found in the constitution.

Liberals mean, near as I can tell, that they disagree with the opinion.  Comments following Andrew Sack’s recent NYT article objecting to the Florida ruling revealed consistent themes.  The court; doesn’t care about the people, is engaging in cronyism and is denying the rights of the people.  Wisdom, wants and wishes may birth motive for a law but they are insufficient to endow it with legitimacy.

Judicial activism does not concern itself with well enough reasoned opinions one disagrees with.  The charge is appropriately leveled at when judges exceed their authority and enter the legislative sphere in order to legitimize an otherwise illegitimate law. 

August 3, 2010


Filed under: Healthcare,Nobamacare,Obamacare,Politics — Tags: , , , , — Obtuse Observer @ 6:10 am

I think I have mentioned this here before but if not then I am now.  One of the most curious aspects of Obamacare is the constitutional authority to require citizens to buy health insurance.  One presumes this is based on the interstate commerce clause.

Here’s the curious part.  Not buying insurance is not commerce.  Further, insurance is regulated state to state so, not only is it not commerce but it is not interstate. 

The Commonwealth of Virginia filed suit shortly after Obama signed his healthcare bill.  There are many other states who have filed suit as well citing in part the issues I raised above.  Today US District Judge Henry Hudson ruled against the Administration’s motion to dismiss the Virginia suit.


By Warren Richey, Staff Writer / August 2, 2010   

A federal judge in Richmond, Va, refused on Monday to throw out a lawsuit filed by the Virginia attorney general challenging the constitutionality of President Obama’s health care reform law.  The ruling is the first decision in what may be years of litigation over the question of whether Congress has the power to regulate – and tax – a citizen’s decision not to buy health insurance.  US District Judge Henry Hudson said that neither the US Supreme Court nor any circuit court of appeals had squarely addressed that question. Existing legal precedents are inconclusive, he said.

full article here

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