NEWS: Activist Judge Gets it Right

POLITICS: Activist Judge Gets it Right

At the end of the day today, the score was judicial acitivism 1, pointless laws 0. The ripples from the landmark Lawrence v. Texas decision on sodomy continue to make themselves felt throughout the country's halls of justice, as laws previously designed to give the government access to people's intimate livesdraw more and more fire, and a constitutional right to privacy has become an ever more important concept. Most recently on the chopping block is an idiotic 201 year old law banning cohabitation in North Carolina, challenged by the ACLU after a woman was fired from working in a police station because she was living with her boyfriend.

In all fairness, these laws are predominantly relics of a much more puritanical age, a time when a lot more people believe that it was perfectly appropriate for the government to step and regulate people's personal lives, and are rarely enforced much any more. Fortunately we've come a long way since then, with some help from key cases like Griswold v. Connecticut that established the basis for law considering a right to privacy, and extended by Roe v. Wade. Both of these decisions came under fire, as accusations of judicial activism sought to show that they were desecrating the constitution by not adhering strictly to its letter, where there is not any specifically enumerated restriction on the government to intervene in people's private affairs (though it's also not so difficult to infer from other restrictions that are in there, and a mountain of case law that follows.)



At issue is whether the constitution can really be considered a "living document," that is something that changes with the times, or whether a "strict constructionist" interpretation that only includes what was originally written is the best way to proceed when trying to determine the legitimacy of a law. Common sense tells most people that cohabitation is not something that's going away any time soon, and while some may adhere to an older style of morality that belives cohabitation is a bad thing, it's not really their business - a more general "live and let live" approach to individual morality that has no effect on others has become the predominant force in society as it has grown more diverse. This particular decision was made in a state court so the precedent it has set will likely be more limited than those of the other cases mentioned, which were all decided in federal courts, but the decision can serve as beacon to others seeking to overturn equally outdated and foolish laws that the courts are willing. In order for the law to catch up with society, a little judicial activism breathing life into the constitution can be a good thing.

about fucking time......

Most strict constructionists would view the Constitution not as a power-restricting document, but a power-granting document -- that is, the federal government can only do what the Constitution specifically grants it the power to do, and nothing else. So, this new "activist" court decision would be more or less in line with strict constructionism, because there's no constitutional clause granting Congress the power to regulate people's sex lives. Since that particular power isn't granted to government in the Constitution, any law exercising that power should be struck down, according to the strict constructionist view.

The only real wrinkle from a strict constructionist perspective is that this decision nullifies a state law, not a federal law, and the Constitution was only applicable to federal law back in the day. But since the 14th Amendment is interpreted to grant people the same liberty from bad state laws as they have from bad federal laws, it could be considered kind of a modified strict constructionist approach. Some states' rights strict constructionists (I actually met one who wasn't racist, once) hate the 14th Amendment, but that's a fight they'll never win...

No. A strict constructionist would vehemently disagree with this ruling because the 14th Amendment doesn't explicitly prohibit a state from passing laws to this effect. Remember that the incorporation doctrine is not something that is exactly a favorite thing of the strict constructionist. The 14th Amendment would do ONLY what it says it does and nothing more. This decision is based on a relatively modern and liberal interpretation of the due process clause (specifically the substantive due process clause, which doesn't even exist to strict constructionists).

This is a correct ruling from current Court precedent, but not anything that a constructionist would want anything to do with. Trust me.

Basically, the idea is that the Federal Constitution is a granting document, but state constitutions are limiting documents. Therefore, a strict constructionist would argue that as long as the state constitution does not prohibit this type of law from being enacted, it should be allowed.

There are strict constructionists who are fans of the incorporation doctrine -- like Roger Pilon and Randy Barnett. That's why I awkwardly dubbed it "kind of a modified strict constructionist approach". They may not be strict constructionists in a strict sense, but they have a lot in common -- interpreting the meaning of the Constitution in almost exactly the same ways, with the caveat that they think state power should be limited in the same way that the Constitution limits federal power.

Justice Brandeis once stated that the 4th Amendment was the embodiement of the idea that the people had a "right to be left alone" by their government.

This mixing of religious morality and law really needs to be purged from our laws.

this is the first "good news" story i have ever seen on the newswire ..maybe this is the start of a new trend of sane political decisions?..hmmmmm

Well, if there were sane political descisions going around this dumb-assed law would have been revoked by the senate of NC long ago but apparently the representatives there don't have the balls to offend the batshit religious right by suggesting that cohabitation should be 'legalized'. Same goes for the BS sodamy laws many states had under which such vile crimes as masterbation or getting a blow job were kept on the books because legislatures knew they would only be used on gays.

What we have is a few sane judges, which is what an 'activist judiciary' is for, to keep the mob for doing stupid shiet.

Yeah, I'm not familiar with either of those two folks and nor would I consider myself necessarily an expert on the strict constructionist movement. That said, the above sounds less like the strict constructionist model and more like an old-school federalist model. Again, I would argue that a strict constructionist would find this decision illegitimate because it is based on Lawrence, which is in itself illegitimate. Moreover, it's based on a relatively expansive view of the Lawrence decision. The holding of Lawrence was simply that sodomy laws offended the fundamental right to privacy and you can see how it might be a stretch to get from that holding to this one (It's a stretch that I believe is logical and warranted, mind you, I'm just arguing the other side).

In another example of activist judges disregarding the letter of the law, a missouri murderer was told to get a new defense strategy when his lawyer attempted to get him off the hook using an old state law that declared killing mormons to not be murder.

sometimes, i think the best chance we have at progress is when the Cold War-mentality old guard lawmakers and elected officials leave office and the news ones, who came of age after the fall of the Berlin Wall (our generation), are put into office...so I guess the beginning of the new guard will be in about 20 years...granted, there will still be hXc right-wing psychopaths still around, but I think there will actually be some good progress made when that time comes around

Now THAT is zealous representation, my friend. Bravo!

I won't challenge your mastery of the subject, but it's "masturbation.

Yeah, they got themselves chased most of the way across America before finally settling in Utah. The law was likely a quickie law done as political cover for when local militias were called in to attack the Mormons.

This is an ugly bit of American history that doesn't get much coverage in most classrooms outside of Utah and maybe Arizona, Idaho and Wyoming. They WOULD teach this in Nevada high schools, but our kids don't stick around school that long. There's great jobs as valets if you know the right dude.

Of course. And advancing a frivolous legal argument such as that is often grounds for sanctions. Which is why it's so awesome that the lawyer tried it. Dumb as hell, but awesome all the same.

No. A modern strict constructionist would vehemently disagree with this ruling because it doesn't interpret the constitution in the way that they want it interpreted. Or perhaps because Rush told them that the ruling was another example of an "activist judge gone wild". (Obligatory Girls Gone Wild joke ignored.)