Patterico's Pontifications


Chemerinsky v. Chemerinsky

Filed under: General — Patterico @ 1:24 pm

Erwin Chemerinsky argues in today’s L.A. Times that Heller is an example of judicial activism:

If the terms “judicial activism” and “judicial restraint” have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Chemerinsky says that when a constitutional provision is ambiguous, judicial restraint counsels that the Supreme Court defer to legislative enactments:

At the very least, one would expect that a high court committed to judicial restraint would have used the 2nd Amendment’s ambiguity to defer to the political process and to follow precedent.

Here is a persuasive case for the opposite view, arguing that ambiguous constitutional provisions should be resolved by the Court:

Mark, you say you’ve never heard a persuasive argument as to why someone committed to “democracy” would want courts to determine the meaning of the Constitution when there is disagreement over its meaning. I think that the basic answer came from Marbury v. Madison: the limits of the Constitution have no meaning if they are not enforced and the other branches of government see their role as pleasing constituents, not upholding the Constitution.

. . . .

The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.

Well said.

You might be interested to know who made this argument. He is a well-known law professor by the name of Erwin Chemerinsky.

42 Responses to “Chemerinsky v. Chemerinsky”

  1. The cognitive dissonance that these clowns endure must be excruciating. Right, harpy?

    JD (75f5c3)

  2. Never have been a fan of the term “activist judges” nor “legislating from the bench”.

    Seems pretty clear to me the court simply decides whether or not the law passes constitutional muster.

    I don’t know of a single judge ever who has legislated from the bench. Seems to me to be a wingnut talking point when the court makes a decision they disagree with.

    jharp (9b1a32)

  3. To Chemerinsky’s credit, it really seems that he has been a lot more low key (i.e., less partisan), as requested, since he became Dean of the Law School at UC Irvine. To his discredit, when roused he is still an intellectual shill for the knee-jerk left.

    JVW (ce519b)

  4. So, they were not legislating from the bench when Kennedy was discussing the efficacy of death penalty sentences, and whether or not it would increase the number of children that had been raped also being murdered? harpy’s definitions, they are interesting.

    JD (75f5c3)

  5. It is all predicated on the specious argument that the constitutional provision is ambiguous to begin with. It is only ambiguous if you really want it to be.

    quasimodo (1818c1)

  6. quasimodo – Good to see you round here again.

    It is all predicated on the specious argument that the constitutional provision is ambiguous to begin with

    Good observation. Excellent, even. We all know that “shall not infringe” is ambiguous.

    JD (75f5c3)

  7. I don’t know of a single judge ever who has legislated from the bench.

    The FL SC did it in 2000, and frankly I think Roe v Wade fits the bill as well…

    As does the “No killing child rapists” ruling the other day…

    Scott Jacobs (fa5e57)

  8. I’ve never had any respect for Chemerinsky, the bulk of his legal reputation has always appeared to me to be more the product of pandering the liberal talking point de jour than any real legal rigor. When I was practicing in California, and the California Bar Journal carried a column by him, it only reduced my already low opinion of the Calif Bar.

    SPQR (26be8b)

  9. I don’t know of a single judge ever who has legislated from the bench.

    Yes, because dictating choices to a state for their choice of penalty for crimes against children is judicial, not legislative.

    JD (75f5c3)

  10. See too, Justice Gonzales v. Justice Owen in the Texas Parental Notification cases (Doe).
    I asked, in light of the Miers nomination, if GWB considers BOTH, Owen and Gonzales as strict constructionists, and if so, how he reconciles that they are on opposite sides in that case. At any rate, the Texas Supreme Court, with Gonzales as chief, construed the legislative intent in a way contrary to the legislatures intention. I don’t much care what label some anonymous observers objects to attaching to that – “legislate from the bench” “not strict construction” – I don’t care about the label. But I see it as judicial disrespect for (and overriding of) legislation.
    I agree that SCOFLA (Supreme Court of Florida) stands as another shining example of butchering the plain intent of legislation, when it decided the Gore v. Bush cases. Cherry picked the legislation and obviously not understanding the multi-phase nature of the election process in a close decision. “Oh, well just recount these (cherry picked) counties, that’ll yield an accurate result.”

    cboldt (3d73dd)

  11. So certainly if the right to bear arms is full of such ambiguity, I hope he really reevaluates the decision on the right to an abortion. Based on his own argument, shouldn’t that have been left up to the states?

    Michael M (25ccc4)

  12. Michael – BBBBBZZZZZTTTT. Wrong. Rights not actually in the Constitution but flowing from penumbras and emanations are written in stone, granite. Never to be discussed again. Actual specific rights are ambiguous by their very nature, or something like that.

    JD (5f0e11)

  13. Chemerinsky has again resorted to junior high level arguments to make a point that even he himself cannot truly believe.

    MOG (c949f7)

  14. Okay, I don’t know the whole backstory on this guy that everyone else apparently does, though I’ve heard of him, nor do I care whether he’s right or wrong, but based just on this post it seems that he personally supports judicial activism (and is opposed to judicial restraint), but is bothered that some who claim to oppose activism are blind to it when practiced by conservative judges, as in this recent gun rights case.

    I don’t see the cognitive dissonance there.

    Nels Nelson (a474bc)

  15. Evidently Nels, you see judicial activism in a Supreme Court decision that reflects 200 years of understanding about a constitutional amendment?

    SPQR (26be8b)

  16. SPQR, I haven’t read the decision. I’m just stating what I take to be Chemerinsky’s position, based on the quotes in the post. Obviously this is supposed to be a “gotcha!” post, but I don’t see it.

    Nels Nelson (a474bc)

  17. Consistency is the hobgoblin of small minds and we all know that Chemerinsky doesn’t have a small mind—er do we?

    Mike Myers (31af82)

  18. Nels, you are reading into Chemerinsky something that is not there. Neither of the two faces of Chemerinsky are criticisms of other’s hypocrisy, both are phrased as his own position.

    SPQR (26be8b)

  19. #2 – jharp

    I don’t know of a single judge ever who has legislated from the bench. Seems to me to be a wingnut talking point when the court makes a decision they disagree with.

    — Have you read the decision in the California gay marriage case? The phrase “constitutional right to marry” appears sixty-six times in that document.

    Point of fact: there is no “right to marry” specified in the California Constitution.

    And the simplistic assessment that an accusation of judicial activism only occurs because “the court makes a decision they disagree with” is itself a standard liberal talking point; and, like most liberal talking points — both those that are positive and those that are negative — it takes the form of an absolute: according to them, each time the “activism” accusation is made it’s just a case of sour grapes, and nothing more.

    Case in point: jharp’s statement, “I don’t know of a single judge ever who has legislated from the bench.” According to him it hasn’t even happened once! Not ever! Apparently judges are infallible; every single one of them incapable of overstepping their bounds . . . morally pure, like the ‘constitutional law professor’ currently running for president.

    Icy Truth (018ffe)

  20. Chemerinsky nicely defines activism into something it isn’t, then rails against it. Properly defined, a judicial activist is one who substitutes his or her policy choices for the clear Constitutional text.

    It is hardly activist to return the law to the state where it matches the text and intended meaning. The fact that activists in the Plessey era distorted the meaning to disarm Negroes, and other activists distorted the meaning further in the New Deal era to disarm folks more generally does NOT make it “activist” to undo such.

    Of course, “activism” is a word that Chemerinsky wants to debase, as it is accurately applied to him and he’d like to muddle the issue.

    Kevin Murphy (805c5b)

  21. These are not the rights you are looking for…

    ObiDeanChemerinsky (211bbb)

  22. I have been listening to Chemerinsky on Hugh Hewitt’s radio show for years and he always takes the left wing side in any discussion. If he would just once argue against his own bias, I would accept his bona fides as an honest professor and not a lefty activist but I have yet to hear it. This would have been a good case to do so, actually.

    Mike K (b9ce3e)

  23. Professor Chemerinsky isn’t the only duplicitous “progressive” rending their garment in moral outrage in a morally outrageous fashion. Opposite Chemerinsky’s written spasms on the LA Times editorial pages is the papers own self-documented duplicitous editorial rant entitled: “Guns, yes and no”.

    In this top-of-the-column editorial, the LA Times makes two factual mistakes – or outright lies, depending on ones level of suspicion – in their unspecified references to US v Miller and assumptions on the legal status of the National Guard. The Times assumes that Miller IS the end-all and be-all of 2nd. Amend. interpretation and that CJ Robert’s was bound by his confirmation hearings to uphold the unmentioned “Miller” ruling because it was “precedent”. Those on this site who are familiar with Miller know that very little in this SCOTUS decision was decided other than that a cheap hardware store shotgun, being crudely shortened by a hacksaw, was not likely to be a military weapon and that the decision was flawed by lack of council on the then deceased Miller’s behalf. Nothing more.

    The Times then makes reference to the National Guard as being the only principal benefactor of the 2nd. Amend. by inference of the “militia” clause. The Times appears to ignore Engblom v. Carey, 677 F.2d 957, (1982) when the 3rd. Amendment was put to test in the US 2nd. Court of Appeals who held (and to my knowledge still stands) that the National Guard, whether in the service of state or federal authorities, were legally considered to be “soldiers” under the provisions of the 3rd. Amendment. “Soldiers” are considered as “Regulars” in the military term of art and therefore subject to the restrictions of the 3rd. Amendment. The National Guard are not “militia”, no matter how much the Left wish them to be.

    It is no wonder that the editors who wrote this editorial are afraid of guns. Were they as careful with guns, as they are with facts, it is a definite certainty that they will shoot themselves in the foot. Left by accident, right by design.

    C. Norris (4daa9d)

  24. I don’t see the two opinions as contradictory. The “activism” vs. “restraint” argument is always in the eye of the beholder. When a justice does not wish to overturn a constitutionally-suspect law for ideological reasons, he adopts the mantle of “judicial restraint,” whereas when he wishes to overturn a popular law, he will claim it is the court’s duty to be immune from majoritarian pressures. Since almost every legal question has more than one right answer, Supreme Court justices get to toggle back and forth on this argument.

    Steve Smith (72a7af)

  25. Steve Smith, that’s really not true. There is obviously subjectiveness to how people employ the term.

    But when a court’s opinion starts talking about the merits of a policy, it is pretty clear that they are taking on a role that is not appropriate to the judiciary.

    SPQR (26be8b)

  26. I was never so surprised when I actually READ Miller a few years ago, to find out that it said nothing much about the 2nd Amendment except that sawed-off shotguns weren’t protected since they were not useful to a militia. But it never said anything about the individual needing to be part of a militia, just that the weapons had to be useful to one to be protected.

    Such as assault weapons, machine guns and even handguns, besides the obvious hunting rifle. Maybe even cannon and hand grenades. No, I thought, Miller isn’t as perfect a cases as all these gun-grabbers think it is….

    Bet you they still haven’t read it.

    Kevin Murphy (0b2493)

  27. Actually, it doesn’t even say that. All it says is that it is not within judicial notice that short-barreled shotguns are useful enough to a militia to be protected. If Miller and Layton had ever actually been tried afterward, it would have been up to the judge to hear evidence to decide whether short-barreled shotguns bore a reasonable relationship to a well-regulated militia or not.

    Xrlq (62cad4)

  28. Scalia offers the best explanation of Miller on page 49-50 of the opinion. [PDF pgs. 52-53.] The last sentence of the quoted passage below is the most critical (my own emphasis added) –

    The judgment in the [Miller] case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 17 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

    This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the [Miller] Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.

    Justin Levine (8db65e)

  29. at long last reality and truth run together in the world business reports.

    the big boys fuck them all are upfront. exon, mobil, total and bp. billions of gallons of sweet crude beneath the sands of irak and machmoud amadinijad with one quarter of americas oil supply in his hungry grasping hands understands it all.

    interview in truth today asks the oil minister of irak who bares it all. of course bush and cheney worship the iranian iraki saudi polluting black oil barrel and created the invasion to secure the needs of the american people and national security.

    lets call a spade a spade the “axes of evil” are the siamese big money twins inside the luxurious offices of the city of london and wall street in new york.

    yes bush and cheney really know how to jerk off for national security and the american dream.

    dr adam rosenblatt

    adam rosenblatt (e2433f)

  30. machmoud amadinijad with one quarter of americas oil supply in his hungry grasping hands understands it all.

    Quick question: how much oil has the United States purchased from Iran in the last 28+ years? (Hint: It’s a nice round number that rhymes with the name of the Roman Emperor famed for fiddling during major conflagrations.)

    Drumwaster (5ccf59)

  31. True, but I’m not sure that really matters. Oil is fungible, so if they sell to anybody, they might as well be selling to us.

    Xrlq (b71926)

  32. And, to take it from another direction, Mahmoud doesn’t have his hands on so much as a drop of America’s oil supply. The trouble is that neither do any Americans (thanks to the Democrats, and their blanket bans on domestic drilling).

    Drill here, drill now, pay less.

    Drumwaster (5ccf59)

  33. After reading Justin Levine’s #28, why can’t I have a M-16? It IS a Military and Militia arm. For that matter, why not allow me to have the bane of the liberals, a fully automatic or select fire AK-47?

    PCD (5c49b0)

  34. PCD

    Scalia specificly cites works and commentary from the founding on the nation that “keep and bear arms” refers to weapons not disigned specificly for military use (thus handguns, pistols, and the like are for us civies, cannon and such for the Feds)…

    The M-16 is specificly military… Alas.

    Personally, I wanted my Colt M-4…

    Scott Jacobs (fa5e57)

  35. Scott,

    If we go back to the works and commentary from founding the nation, the Militia was assumed to be every ablebodied male citizen. Therefore, if we opted, we could be like Switzerland with automatic weapons and ammunition in the home.

    PCD (5c49b0)

  36. Hey, I ain’t saying that’s the wrong position to take…

    But then again, Switzerland has virtually no standing military, and never engages in war (those weapons exist in the homes of the men-folk for defense should switzerland get invaded, which would be a VERY stupid move), so that plan works well… We would still need that standing military…

    But again, if someone wants to issue me a new Tavor (sp) rifle, or one of the new Enfields, I wouldn’t say no…

    Scott Jacobs (fa5e57)

  37. 36, Scott, I’d settle for a M1927A1 Thompson.

    PCD (5c49b0)

  38. Travor is more accurate… If the IDF likes it, it’s good enough for me…

    Scott Jacobs (fa5e57)

  39. 38, but I’m old school, and it would go well with an accurized M1911 Colt. I’d only need carry one size of ammunition.

    PCD (5c49b0)

  40. So Rosenblatt is still spamming?

    SPQR (26be8b)

  41. Apparently… More like “Ignorantly trolling”…

    Scott Jacobs (fa5e57)

  42. Actually, Scalia got this part wrong (as did Stevens in his dissent):

    The judgment in the [Miller] case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236.

    Miller and Layton had their indictments quashed at the District court level, where the NFA was held to be unconstitutional on 2nd Amendment grounds. The case was appealed directly to the SCOTUS, which reversed and remanded it for further proceedings. The further proceedings never happened and we have been living with the consequences of that to this day. Now we have the chance to reverse some of those consequences, but I hope it doesn’t take another 69 years to do so.

    Tom A (5f0f63)

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