CAMPOS: An impossible exercise
By Paul Campos, Rocky Mountain News (Contact)
Published May 28, 2008 at 12:05 a.m.
As movement conservatism collapses, its public relations wing sounds increasingly like an old man who uses the same pickup lines that worked a lot better 25 years ago.
A nice example is provided by the cries of outrage that greeted the California Supreme Court's recent ruling regarding same-sex marriage. For example, my fellow Rocky Mountain News columnist Mike Rosen accused the court of "a blatant act of judicial activism," and used the occasion to argue that, when it comes to judicial behavior, conservatives and liberals are divided by irreconcilable philosophical differences.
According to Rosen, conservatives believe in sticking to the original meaning of legal documents, especially constitutions, while liberals are "inherent social engineers," who are happy to misinterpret the law if it gives them outcomes they consider just. The latter activity is what Rosen calls judicial activism.
This is wrong on a bunch of levels, which isn't surprising given the overall quality of Rosen's legal analysis (for instance he claims that as a matter of law marriage "is not a fundamental right," when several recent U.S. Supreme Court cases have held specifically that it is).
Indeed, his description of judicial activism involves some important distortions, which are at the core of various claims about "judicial tyranny" that conservatives have been making for many years now.
First, the claim that conservative judges stick to narrow "originalist" readings of legal language in general, and constitutional provisions in particular, while liberal judges engage in promiscuous outcome-oriented misreadings of these documents, is, at this late date in American legal history, rather implausible.
Plenty of conservatives have always been more than happy to applaud aggressively creative judicial acts of constitutional interpretation, which overturned democratically enacted laws - as long as those acts produced policy outcomes they liked.
That was true in the first decades of the 20th century, when a conservative Supreme Court struck down various federal laws regulating relations between workers and their employers, on the ground that an ill-defined constitutional right to "liberty of contract" invalidated such laws.
And it's equally true in our own time. When claims are put forth that an inherently vague phrase such as "public use" prohibits legislatures from employing the power of eminent domain to transfer property from one private party to another, many conservatives treat this claim - which is highly contestable from an originalist perspective - as self-evidently correct.
Similarly, when conservative judges strike down democratically enacted affirmative action programs on the ground that racial preferences of any kind violate the Constitution's equal protection clause - another argument which is difficult to defend on originalist terms - this is almost invariably greeted by conservative commentators as an act of Solomonic wisdom, rather than judicial tyranny.
(It isn't necessary to mention that seven years ago the Supreme Court's five most conservative justices invented a brand new reading of the 14th Amendment, thereby hijacking a supposedly sovereign state's own election process, and ensuring the Republican candidate would win the presidency).
But beyond the cluelessness or hypocrisy of claims that liberals believe in judicial activism while conservatives don't, a more basic problem bedevils the right's siren songs about the tyranny of judges.
It's intellectually plausible to argue that courts shouldn't engage in constitutional judicial review at all. Indeed, there are respectable arguments to be made for that view.
What isn't plausible is to argue that judges can engage in an objective, politically neutral exercise, in which they determine how the original meaning of a centuries-old document applies to the political questions of today.
That's like expecting the Bible to tell us what the capital gains tax rate should be. Yet this impossible exercise is what conservatives continue to present to us as the alternative to "judicial tyranny."
Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.
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May 28, 2008
7:56 a.m.
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LetsThink writes:
Mr. Campos is very skilled with words. Which makes it a little difficult to discern what he is really saying.
But I gather his agenda is to eliminate the third branch of Government (Judicial).
And since Mr. Campos is a liberal, I can understand his desire. The Democrats already have control of the House and Senate. They are now trying to get the Presidential branch.
But to be safe, they must also take control of the Judicial. It would take too long to accomplish that through the other two branches. So it is being achieved internally. Very clever.
So liberals (like Campos) want the Judicial to start create laws (which is what the Legislative branch is starting to do, and very effectively).
If the Liberal Democrats get what they are striving for, they will soon have control of all three branches of Government.
Then where will America go?? You guessed it: to pure Socialism.
Is anybody concerned??
May 28, 2008
9:56 a.m.
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rjnova writes:
Campos plays the lawyerly game of word warp but to a normal person liberal judges since Earl Warren have thought they were able to discern intent from the writers of the constitution far more than conservatives. A strict interpretation will cover most all constitutional questions and where not addressed legislation is required or the question should be left to the states as stated---not to judicial fiat.
Normally intelligent people in spite of Campos’ imperious, academic edict understand liberals more than conservatives want to engage the govt. in social engineering. It is like pornography, it is hard to identify but you recognize it when you see it.
May 28, 2008
10:33 a.m.
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rickg19611 writes:
Campos was proven an idiot when he made fraudulent claims about the NFL draft commentators being racist... and then just a couple of days later, documented proof was published that proved Campos was either lying or ignorant about the issue.
Campos refused to even acknowledge that his entire column about the subject was proven to be 100% inaccurate.
Therefore, any opinion by Campos is automatically suspect, given the documented and published record of Campos' fraudulent claims.
May 28, 2008
12:34 p.m.
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Ted_in_Vegas writes:
So, this Law Professor doesn't even know judicial history (his comment on Bush v. Gore). The US Supreme Court REMANDED the Florida Supreme Court's decision because they lacked ANY legal argurments for their decision to let Gore's ILLEGAL recount to continue. Florida Law required that any recount must start and end by certain dates; Gore's recount started just before the mandated end date and ran weeks past the mandated end date. Florida Law also required that the recount be conducted "in all counties, districts and/or precincts" in Florida where where the election was held, which would've meant a state-wide recount in this case; Gore's ILLEGAL recount was conducted in only three counties and parts of a fourth, not ALL 57 COUNTIES as mandated by law. The US Supreme Court remanded the decision because the Florida Supreme Court could give no legal reason for an ILLEGAL recount to continue.
That said, he has a point about the right to marry being a fundamental right and therefore even superior to the Constitution. But, where do those fundamental rights come from? Our founding documents, the Declaration of Independence for example, says that fundamental rights come from nature and nature's God! God said that man should marry woman, not man and man or woman and woman; He said a man should cleave (be stuck to/with) to his wife, not a man to cleave to his husband!
Or, shall we take the John Locke route? As in, the "consent of the governed", also referenced in the Declaration of Independence. OK, the majority of Americans doesn't want same-sex marriage and doesn't consent to its formality; therefore, same-sex marriage cannot be a fundamental right! The California court therefore, then, usurped the power rightfully held by the people and has made itself a tyrant. Shall we then arm ourselves in revolution to eradicate the tyrant, I think not. We still have recourse to re-establish sanity into our courts - amend our constitution(s)!
Of course, here in Nevada that wouldn't mean a thing. Our Supreme Court already held that a Constitutional Amendment that violates a statute is void. Maybe there are some judicial tyrants out there afterall! (Note: Of the justices that voted in the above-referenced case, all but two have been voted out and one of those has come out against his previous decision and begged the people's forgiveness, which we gave him.)
All of that to say this, Liberal judges are using the courts to reinvent society into what they think it should be, regardless of whether their ideas are sound or if they are using the authority they were given or someone else's. We need serious and drastic reform of our judicial branch(es) before we lose more of our liberty.
May 28, 2008
5:43 p.m.
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WestminsterJ writes:
Campos's column here points up the entire problem today. Gay "marriage" is a travesty that could never have been addressed in the Constitution because the Founders would never have conceived of it. Ted in Vegas is actually right (once he stops talking about Bush v. Gore) that heterosexuality is part of the same background of values under which marriage is a fundamental right. The problem is that the American Right has been so hypocritical and intellectually bankrupt/dishonest, and has wasted its moral capital on pursuing the issues most important to it, like increasing corporate profits and continuing the action in Iraq, that it has no credibility left. There are compelling arguments against enshrining "gay marriage" into the Constitution, but no one is qualified to give them and no one is disposed to listen.
May 28, 2008
5:52 p.m.
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Oh_Wise_One writes:
You, sir, are a moron. Not just any moron, but the biggest.
Congrats.
May 28, 2008
7:42 p.m.
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jay writes:
you got it ted, what ever happened...let's make sure we support the decision not to have all the peoples' votes counted.
amazing.
May 28, 2008
8:02 p.m.
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Ted_in_Vegas writes:
Jay, if Gore wanted "all of the peoples' votes" counted, why only 3 of 57 counties and parts of another? Why ONLY the three counties he performed best in? Why not Jacksonville with the large Republican/Military vote? Why did the Dems attempt to NOT count the Military, absentee ballots?
How dare you say that Gore wanted "all of the peoples' votes" counted! He and his team tried extremely hard to accomplish the exact opposite!
May 28, 2008
8:38 p.m.
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Ted_in_Vegas writes:
The Democrat election judges even tried to take the Dade County recount behind closed doors, without any public view - as mandated by law - and without the presence of the Republican election judges - also mandated by law.
May 29, 2008
10:33 a.m.
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malis writes:
Nice to finally see a Campos column on a topic in which he's actually qualified--the Law and legal analysis. Feel free to argue that he's wrong (plenty of equally knowledgeable conservatives do) but argue it on the points of law and logic, not that he's other than knowledgeable and competent in his field.
The point is that both liberals and conservatives tend to detect 'Judicial Activism' through a filter of their own preferences, preconceptions, and prejudices. Despite VegasTed's obsessive certainty, it is the opinion of a number of quite conservative legal analysts that the five conservative Justices responsible for the US Supreme Court's 2000 Bush Vs. Gore ruling did at least strain the limits of law and precedent to overturn what had been settled and uncontroversial law passed by the people and legislature of Florida (talking about the initial 5 to 4 decision to insert themselves in the case at all, not the subsequent and less controversial 7 to 2 decision based on much narrower grounds). This certainly does seem to fit most descriptions of Activism...to quote the original Rosen column, "...working backward from a desired social or political outcome, rationalized by a tendentious, arbitrary and convenient reinterpretation of the law or the constitution."
On the other hand, consider another case Campos references. How many of you [Vegas] applauded the judicial restraint shown by the Supreme Court in its 2005 Kelo Vs. City of New London decision? The Court's majority upheld the settled rights of the People to decide, through its elected representatives, what constituted 'Public Benefit.' I disagreed with the results of that decision but understood the reasoning. Both the affirming and dissenting judges noted that the citizenry, through local government elections, had the full ability to change their laws and regulations to effectively reverse the decision's effects, and that's exactly what has been happening.
So yes, although we can debate the relative degree of 'activism' inherent any particular judicial decision, Campos's primary point seems uncontroversial--some of those who yell "ACTIVISM' the loudest, tend make that claim more on a political position or an emotional attachment to deeply held beliefs, than on the actual merits of a case.
May 29, 2008
10:52 a.m.
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gary writes:
Let me see...marriage is a right for gay people..yes Campos??
You need a license to be married...you need a license to drive.
To get either one..you need to meet requirements of the law.
There is no right to either one if you do not meet the requirements.
That is unless people like you..change the requirements of the law.
Correct??
Nuff Said!
May 29, 2008
11:25 a.m.
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malis writes:
Gary, did you catch Tony Perkins (heads "The Family Council" or some other mis-named religious right-wing advocacy group) on the Colbert Report? Perkins made your "need to meet requirements" argument:
Perkins: "I can't marry my first cousin, can I?"
Colbert: "Well, I'm from South Carolina..."
Perkins: "Well, I can't marry someone underage."
Colbert: "Well...as I said..."
Colbert: "OK, I see how it goes, you can't marry your cousin, you can't marry an underage girl, you can't marry a man, you can't marry a black woman, you can't maaa...oh, wait a minute...you mean we changed that last one? When did that happen?!"
OK, I made that last one up...I should get paid for this stuff.
May 29, 2008
11:41 a.m.
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malis writes:
And Gary, in case you really didn't understand, let's modify your entry just a little
"Let me see...voting is a right for black people..yes Campos??
You need a registration to be married...you need a license to drive.
To get either one..you need to meet requirements of the law.
There is no right to either one if you do not meet the requirements.
That is unless people like you..change the requirements of the law.
Correct??
Nuff Said!"
So Gary, It's impossible that the requirements established by local or state government--say, a poll tax or literacy test--can be overturned when found to be in violation of basic, fundamental rights?
Clear?
May 29, 2008
11:45 a.m.
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malis writes:
(dang...3rd line of above, change "...to be married," to "to vote..." I really miss having an editor!)
May 29, 2008
12:05 p.m.
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Ichbins writes:
It is truly pathetic to actually witness a so-called "professror", an 'academic' espouse little but nonsensically fabricated garbage arguments in attempt to "pull the wool" over people's eyes.
What a joke. Here's just an example:
Campos asserts-"It is intellectually plausible to argue that courts shouldn't engage in constitutional judicial revue at all."
-What are courts supposed to do then? Revue only traffic laws?
And there apparently are "respectable arguments" that back this view. Like who? Arriana Huffington?
Campos then goes-"It's like expecting the Bible to tell us what the capital gains tax should be."
Well, not really Paul. In fact comparing the Bible to the US Constitution is beyond ludicrous. It is embarrassingly idiotic.
A clear example of MORAL EQUIVALENCY" that hilarious fabrication of (you guessed it) the liberal left, in an attempt to somehow legitimize nonsensical ideas.
Paul-give it up, man! Go home. There is no such thing as 'moral equivalency', nor does the weak argument 'judicial tyrrany' hold any water at all.
This commentary may be one of Campos' greatest works of silliness ever.
Iam disappointed, as always, in Mr. Campos.
Also embarrassed to have graduated from CU's poli-sci department.
May 29, 2008
8:08 p.m.
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Achilles writes:
This comment by the slandering and slithering Campos deserves to be repeated for the purpose of entering Exhibit A into our public trial against an overt act of treason:
*** "It's intellectually plausible to argue that courts shouldn't engage in constitutional judicial review at all. Indeed, there are respectable arguments to be made for that view.
What isn't plausible is to argue that judges can engage in an objective, politically neutral exercise, in which they determine how the original meaning of a centuries-old document applies to the political questions of today." - Campos ***
This is very telling. In the same vein that he attempts to tell us that liberals are not engaging in judicial activism, he also seems to be suggesting that the Constitution - that "centuries-old document" - is no longer important when ruling on issues.
This man is overtly, yet slyly, attempting to set the framework for the abandonment of our Constitution. This is treasonous and I now believe Campos is a traitor.
He is a professor of law at a major university. This means he is most likely attempting to indoctrinate his students to join him in abandoning our Constitution. And, he is using the RMN as a broader platform to slander and silence anyone with whom he disagrees. This amounts to an overt act of levying a subversive war against the United States government by actively working to develop a confederacy of anti-constitutionalists.
Judging from his ruthless slander just a few weeks ago of an innocent football scout, Campos has proved himself to be a malicious and flagrant liar. Therefore, I would ask Congress to apply the most sever punishment to Campos for his treason and slander against his government and fellow countrymen.
Since the Constitution says "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act" I trust that we can find much more than two witnesses to his overt act in this traitorous column.
Can I get a witness?
May 29, 2008
11:02 p.m.
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mytwosense writes:
John II, I do believe you may be clinically insane.
May 30, 2008
9:45 a.m.
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epaminondas writes:
John II is a traitor to reason.
May 30, 2008
10:19 a.m.
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Achilles writes:
Ἐπαμεινώνδας
Η τρέλα δεν πάει στα βουνά, πάει στους ανθρώπους
May 30, 2008
5:50 p.m.
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Achilles writes:
If Campos can breezily accuse an innocent football scout of racism simply because Campos did not like the scouting reports, I have no problem accusing this lying scoundrel of treason for suggesting that judges need not refer to the Constitution on rulings.
June 1, 2008
9:31 a.m.
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Roader writes:
Campos is right; both the Left and Right are guilty of screaming "judicial activism" or "legislating from the bench" when the Court makes rulings either doesn't find satisfactory. Campos touched on the famous fight between the executive branch, headed by FDR, and the US Supreme Court in the 1930s:
'That was true in the first decades of the 20th century, when a conservative Supreme Court struck down various federal laws regulating relations between workers and their employers, on the ground that an ill-defined constitutional right to "liberty of contract" invalidated such laws.'
I wish Campos would have fleshed this out a bit more, because it was the granddaddy of executive vs. judiciary fights. Roosevelt ran into trouble with hundreds of New Deal provisions because the Supreme Court decided that many of those provisions were unconstitutional. When the Court struck down a minimum wage provision, arguing that government had no business interfering in a freely made contract between and employer and employee, Roosevelt flipped out. In order to side-step the pesky Supreme Court that wasn’t going along with his unconstitutional federal activism, Roosevelt tried to pack the Supreme Court with his cronies in the form of the Judiciary Reorganization Bill of 1937. Commonly known as the Court Packing Bill, it would have allowed the Roosevelt (or any other president) to appoint an extra Supreme Court Justice for every sitting Justice over the age of 70½. In 1937, six additional justices could have been appointed!
Can you imagine if any other president since had tried this? Roosevelt attempted to make himself king and he succeeded in many respects. Although Congress voted the Court Packing bill down, the Supreme Court was terrified of Roosevelt’s power and ended up allowing most of the New Deal provisions that they’d earlier struck down as unconstitutional. It was the most blatant executive power grab in the last 140 years and really is the root of most fights between the three branches of government today.
June 2, 2008
2:58 p.m.
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Ted_in_Vegas writes:
Yeah, just think of how much better off we'd be if the government didn't grab as much power as FDR wanted back then.
No Feds to screw up the housing market!
No Feds to screw up energy policy!
No Feds to screw up our privacy!
Activist judges indeed. The conservative court wasn't activist until they started ignoring the constitution and siding with FDR.
June 2, 2008
3:30 p.m.
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Achilles writes:
The FDR/Courts subject is an interesting one. FDR's programs represent what our modern day socialists, I mean, Democrats, would enact if they had a larger majority. FDR's programs were scary. His NRA program effectively, albeit briefly - thanks to the Supreme Court, established communism in America.
In addition to rounding up Japanese-Americans into camps simply because they were Japanese-Americans, FDR also threatened the Supreme Court. This threat is widely believed to have caused a conservative judge to switch over to the liberal side. This switch was labeled "The switch in time that saved nine." Social Security would not have been enacted if this judge had not switched over to the dark side.
http://en.wikipedia.org/wiki/The_swit...
June 3, 2008
9:17 a.m.
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Roader writes:
FDR's "Second Bill of Rights" proposed in 1944 (because the first Bill of Rights "...proved inadequate to assure us equality in the pursuit of happiness." :
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education
Sounds like Barack Hussein Obama.
June 3, 2008
10:46 a.m.
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Ted_in_Vegas writes:
Here we see an example of the liberal lie: Blatant truth mixed with Hidden agenda. No one in their RIGHT mind disagrees with those objectives; however, the means to accomplish those objectives is what is at dispute.
The reason? If those are to be established as a governmental right, each one of those must be enforced by a government at the point of a gun or legal action.
Power corrupts all who wield it.
A government with that kind of power, once corrupted, can turn that power against those it aimed to protect or strip others of their rights...
Does anyone remember what happened in NAZI Germany (1930s), Soviet Russia (1920s), Marxist China (1950s), Communist Cambodia (1970s), and many other leftist countries?
Power corrupts; why do you want to give the government even more power? Because you want less exercise of your rights?
June 3, 2008
11:24 a.m.
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Achilles writes:
Its hard to tell what angle Roader is playing. Is he happy that Obama sounds like an FDR socialist? Or does he honestly believe our nation every family has a "right to decent home"?
This is scary stuff if he actually believes all of those items are "rights". Socialism is definitely rearing its ugly head this election.