States Rights & Judicial Activism

This is a response I made to someone that is unhappy with the Judicial Review power of the Supreme court. I tried to quote all the relevant parts from the source. Oh, and it starts off with a little talk about States Rights (again with parts from the source quoted).

"First, let me say that when I wrote my essay on a disunited people, I did not intend to convey that states rights should in anyway be infringed upon."

Why not? You made a very valid point that if we all worked for a common good that the country would be much better off. All the different divisions that we break ourselves into just give ever more "them's" that the "us's" can begrudge.

"I do believe that we need the states and states governments."

We both (and pretty much everyone else) agree we need local government of some sort. But I can think of absolutely no reason that we need local laws. It makes no sense to have more than 50 different sets of traffic laws. Different laws on interstate commerce make even less sense. I definitely think that local entities need to be in charge on how money is spent on their local services and area development. But beyond that, I literally cannot think of a valid reason why they would need legislative power.

"Judicial Activism occurs when Justices actively seek to shape constitutional meaning to fit their interpretation of said document, their interpretation of the intention of the framers of the constitution, or their estimation of the needs of society."

While you might term that as activism that is also actually their job description. Well, at least as demonstrated by Marbury v. Madison (1803) as implementing their power of judicial review.

"To contrast, Judicial Restraint is the belief that since Justices are not popularly elected, the Supreme Court should move cautiously. They should, except in cases where enacted laws are in obvious conflict with the Constitution, defer to the authority of elected officials over the people. They should avoid confrontation with legislative authority and respect stare decisis or past precedent established by cases that have already been decided."

I would think that every Justice ever would believe that they aspired to "move cautiously", after all these are not "rookie" judges. I also don't see any conflict with rest of this statement, EXCEPT the last bit about respecting "stare decisis". I do not want my ultimate Judicial Review authority bound by the stupidity of the past. And if they are bound by the other restrictions that you layout (which they pretty much are) what is the point of binding them to past precedents anyway? If something is unconstitutional NOW, what does it matter that we didn't consider it so previously. We didn't think slavery was unconstitutional 200 years ago, nor did we think it was wrong to deny women and non-land owners the right to vote. I think you would agree that all three of those things are against the ideals of the Constitution.

Regarding the "Firearms Control Regulations Act of 1975":

Firstly, this is a prime example why I think local legislation is a bad thing. The DC city council passes a law that is direct conflict with state and local law!

Secondly, it did not ban "all firearms in private homes or carried by private citizens". The law banned residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms, as well as prohibited possession of unregistered firearms. Also the law did not state that "it had to be broken down AND have a trigger locking mechanism in place". It stated "unloaded, disassembled, OR bound by a trigger lock OR similar device". I admit the "OR"s are not a huge change to the law's intent, but in the interest in being accurate... :)

Aside: "In the ultimate act of hypocrisy, the Liberals and the Conservatives both accused each other of Judicial Activism."

This is perfect example why I say that "Judicial Activism" means "Judgment I don't like".

Ok, now to the actual case history and law of "District of Columbia v. Heller". Point one: The US Supreme Court only upheld the lower appellate court's decision, so they did follow your advice of respecting previous decisions. Ok, this is really a crappy point since the Judges on the US Courts of Appeals are nominated by the President of the United States, and if confirmed by the United States Senate have lifetime tenure. So they fit pretty much in the same mold that you dislike about the Supreme Court. Point two: So you agree with the decision, but you would have preferred that they couldn't have made it? How would you have preferred that outcome to have come about then. I am really unsure what point you are trying to make by using "District of Columbia v. Heller" as a point against the Judicial Review power of the Supreme Court (or really in this case, the US Circuit Courts). It's not like the City Council of DC was anywhere close to repealing the law, and the residents of DC had a solid majority approval for it as well.

"What gives these individuals, these Justices, who answer to no one, the right to filter the Constitution through their own personal biases and enact their interpretation? Shouldn't these things, these situations that impact the average, every day American, be decided by the officials those American’s elect to represent them? The elected officials who are at least marginally answerable to the people?"

I have a two part answer to this. My first point is actually a point you make later on: "Justice is now for sale to the highest bidder". Quite a few Judges anymore ARE elected officials and can very directly be swayed by campaign contributions (or if not directly swayed then simply elected over a more populace choice with a smaller advertising budget). Taking the election and re-election pressures off are simply the best way I can think of to take "Justice for sale" off the table.

Point two: Not everything should be decided by the majority. That is one of the main points made in the Constitution. Some rights, NO ONE has the right to vote away. The majority thought it was a great idea to stuff anyone "Japanese seeming" into interment camps during WWII. I think the supreme court is a vital counter balance to the mob will of the electorate and an elected official's inability go against the will the majority for more than one term.

And while I might too be "offended" that only the money of the NRA brought this case to the Supreme Court, I do not see that an indictment against the need for said court. Money is power. And power ALWAYS gives you an advantage. The hard part of setting up any sort of government is finding ways to balance the influence of power against the influence of the populace vote. I believe the Supreme Court holds an absolutely vital roll in this balance.

What better method do you suggest to counter act the fact that the "function of government is up for sale"? You actually suggest that the Supreme Court should cede much of it power to the elected officials that are MUCH MORE susceptible to the influences of money than are the Justices! This does not sounds like a consistent argument to me at all!