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  • Suppose Joseph Story Had Been Right, and Brutus Had Been Wrong?

    The Supreme Court’s term has barely begun, and yet speculation already abounds regarding when the Court will hear and how it will decide politically controversial cases such as Obamacare, racial preferences, immigration, and same-sex marriage. Court watchers offer their predictions on the outcomes of the cases, but many if not most simply presume that the justices will decide the cases based on what they individually believe to be good policy, rather than based on any requirement in the law.

    Liberal activist judges have given the public reason to believe judging is just policy work conducted in robes. Liberal Justice William Brennan famously said, “With five votes you can do anything around here”—five being a majority of the Supreme Court. And liberal Ninth Circuit Judge Stephen Reinhardt, a judge who issues such radically activist decisions that they are frequently reversed by even the most liberal members of the Supreme Court, boasts about how many of his extreme opinions slip through unreversed, by noting that the Supreme Court “can’t catch them all.”

    This, of course, is not how judges are supposed to conduct themselves. Attorney General Edwin Meese explained the proper role of a judge in deciding constitutional questions: “Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was.”

    This view was very much the understanding of Justice Joseph Story, who was appointed to the Supreme Court by James Madison. The Center for Legal and Judicial Studies at The Heritage Foundation honors the legacy of Justice Story and his ideals of judicial restraint with the Joseph Story Distinguished Lecture, which is part of our Preserve the Constitution Series. Past speakers have included Judge Robert Bork, University of Virginia Professor John Harrison, and Judge A. Raymond Randolph. This year, we are honored to host Judge Alice Batchelder, Chief Judge of the United States Court of Appeals for the Sixth Circuit.

    Judge Batchelder will explore what might have occurred had the Supreme Court throughout its history agreed with Justice Story that “[a] more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles,” and had it not fulfilled Brutus’s warning in the Anti-Federalist that “in their decisions [the Supreme Court] will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the Constitution.”

    This year’s Joseph Story Distinguished Lecture will take place on Wednesday, October 19, at 5:30 pm, and will be posted online.

    Posted in Featured, Obamacare [slideshow_deploy]

    19 Responses to Suppose Joseph Story Had Been Right, and Brutus Had Been Wrong?

    1. Funny how only liberal judges are "activist judges."

      • Bill says:

        A well regulated militia,being necessary to the security of a free state, the right of the people to keep and bear arms,shall not be infringed. Funny, it's clear and simple. Only a liberal, or I think they are again calling themselves progressives, like to infringe upon the people the right to keep ( in thier homes cars etc.) and bear ( to have on thier person) arms ( guns). If these activis leberal judges can complicate this clearly wrote amendment they should go back to grade school and forget about law school when they grow up.

        • mike says:

          Would you call Brady and Reagan liberals? They're two prominent conservatives that believed there is a limit on the 2nd Amendment. Similar to limits on the 1st Amendment–not yelling fire at a "Who" concert. Likewise requiring people demonstrate that they aren't a danger to themselves and others in possessing and using weapons. Moreover, many of the most "liberal" (as in not requiring much to qualify to carry a weapon) states prevent felons from having weapons. So, it's not that there can be limits on the 2nd but the scope of those limits. We don't ;even allow a Marine to run around in public with their weapon when off duty. And we don't allow them access to 50cal without specific approval and training.

      • Carol Horacek says:

        Because they are!

    2. Bobbie says:

      it's appalling that anyone in America would be judged by consideration of race, creed or culture and not solely on the acts of violations. it's appalling any public government service would customize any tax funded public service in specificity of race, creed or culture! It implies who the American government sees less of and expects more from and is extremely unconstitutional.

      It isn't ethical for government to spend tax payers money on racism, favoritism, discrimination and bias reasons and programs within government's unconstitutional authority to implement. If people insist on customary service start your own private business or pay any higher expense to more of what you want or any changes that only benefits you.

      Before immigrants and gay people refusing a definition of a word, no public service was customized in recognition to race, creed or culture. What was available was accepted. Everything in accommodation to personal livelihoods is up to our self governing freedom.

      People from the late 20th century weren't forced to come here and anybody is free to leave. It's selfishness for some to accept more at less or no expense and without responsibility than anyone else at more or all expense with total accountability. They're in America allowed to help themselves on the backs of Americans? Why didn't they remain in their own country? or go back if they can't respect the constitution or the principles and values of America or refuse their own ability to be self reliant at the expense of those that are self reliant? Please let the people see America for which she once stood strong! See us as Americans not sects of people.

    3. Paul says:

      Citizens United comes to mind. Do you honestly propose that our conservative Judges are not following the rule of law and just enterpretting as they see fit? If you are then I thank you. If not then perhaps you are misguided in your article.

    4. Wayne Ebeling says:

      Not only have they strayed from the Constitution, they have even strayed from common sense!

    5. Gwen says:

      Too many Judges are pushing their own agendas in Court. Yjere has to be a better way of choosing who becomes a Judge. Not enough, if any, personal information allowed to the public to make an educated choice. It has become another "Good ole Boy Club".

    6. Ron Bauer says:

      Unfortunately most Conservatives are passive.

      • Bobbie says:

        it's not conservatives, it's the people being fooled into socialism!

        If this comment doesn't go through, I'll know my suspicions are true!…

    7. Clarence Thomas is the basic conservative of the Supremes. He takes a lot of heat. Interesting book "The Nines" by Jeffery Toobin.

    8. Scott Morrison says:

      Judges have forgotten which branch they are [of]. Or have mingled their authority within the Judiciary Branch with the Legislative Branch and have also (via appointment) followed the unauthorized Ideology Branch…

    9. Scott Morrison says:

      Judges are now using their authority from within the Judicial Branch to mingle/interfere into/with the Legislative Branch. But perhaps worst of all is the unauthorized "Ideology Branch" from those who appoint them…

    10. Gene Zarwell says:

      There are three cases documented on "NoticeOfFindings.info" that demonstrate several types of fraud presented through courts for very obscure rationale and one case listed is referenced on "DueProcessInstitute.org/Supreme.htm" regarding 3rd Party Interference with "Plainiff's Due Process Rights to What is Due." For more information google me.

      • Lonnie Freed says:

        Mr. Zarwell, who hosts 'noticeoffindings.info'? The three cases were documented by whom? You're a fraud, and a certified nutjob. L. Freed

    11. jimmydxyz says:

      The judiciary has become an arm of the liberals. The district courts and appeals courts, mostly are staffed by democrats and gays. The opinions that come out of those courts toe the liberal line. I would like to see every opinion that is reported in the news, whether the judge is liberal, conservative, muslim or homosexual. Then you can judge as to whether or not the opinion is correct or politically correct.

    12. Bobbie says:

      You don't work 24 hours interloper, you will get caught!

    13. Stephen says:

      Yada yada, there is no justice in this country anymore!

      The reason is, lazy voters, cops, prosecuters and lazy, biased and bribed judges!!!

      Stop complaining, look at the judges record then go VOTE!!!

    14. MacelloJoe says:

      We the People more than ever are subjected to Bad Law. From abuse of Executive enforcement of laws, by Legislative insanity like Obamacare, by "Judicial Bias" and "Abuse of Discretion". Also the Judicial violations of the "Doctrine of Precedents", by the Ginsburgs and Liberal Judges are Prima Facie proof of Judicial mis/malfeasonce. The Death Tax is a fraud, our Fifth and Fourteenth Amendment Rights of "Due Process" and the "Taking of Private Property without Just Compensation" are constantly violated by corrupt Lawyers and Judges on "We the Common People". Many Judges were and are clowns and farces in black capes! Get it!

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