November 09, 2005

posted by Al Brophy

Brophy,
Without a doubt the most interesting thing you have said in this commentary was that there was a law student at the University of Alabama who had been Miss Mississippi. This is pertinent for a number of reasons:
1. she went to Alabama, instead of Ole Miss, proving that Alabama is, at least post-Katrina, the bright, shining star of the Southeast.
2. as an alumnus of that fine institution, it stands to reason that I may some day meet this person, which would be of enormous benefit to me, if she was, as you say, Miss Mississippi.

Cheers.

On a more serious note, I do think your juxtaposition of the two "conservative women" does provide a valuable insight into exactly what "feminism" is. It seems to me that feminism has always been about, ultimately, less about "equality" (whatever that means) and more about having the freedom to express yourself in a way that you personally find meaningful, preferably after examining your own condition. The idea that "feminist" could EVER be a dirty word seems sort of silly to me, as a purely definitional matter. To a degree, don't you think that Phyllis Schlafly's writing books and championing some way of life over another is actually a triumph of feminism (though maybe not its proudest moment)? I recently read (probably in an NRA publication), that, statistically speaking, more and more women are both obtaining advanced degrees AND choosing to be stay-at-home moms. I guess my overall question is "can you CHOOSE to abandon career aspirations to pursue some other life goal and still be a feminist, or does feminism have an unflinching agenda 'of workforce or bust'"?

Cheers.

To define feminism as "workforce or bust" is very limiting, IMHO.

The point of feminism is that women should be empowered to make the life choices that they feel are best, and should not have undue barriers placed in their way just because of their gender.

We've made a lot of strides on the first part, but are not doing quite as well with the second one.

Did Miss Mississippi know that Schlafly is, herself, a lawyer (JD from Wash. U. in St. Louis). That crazy ol' bitty has always been a bundle of contradictions. Her mantra was that a woma's place is in the home, but along the way she somehow picked up an master's from Harvard, ran for Congress, etc., so on, and such and such.

Schafly's life a triumph of feminism? Naw. Triumph of hypocrisy, more like.

fiat lux,
I agree with you wholeheartedly, at least as to the first part of your statement, and did not mean my questioning to come off as rhetorical. However, I'll have to take your word as to whether or not women have "undue" barriers placed in their way just because of gender: that is not something I deem myself qualified to discuss one way or the other.
Cheers,
Jay

Perhaps Ms. Schlafly is the exception that proves the rule, but I have found, particularly in the lawst few months, a mangling of the terms "judicial activism" and "restraint".

The Bush Administration and others use the terms “strict construction” and “judicial restraint” together as if they were synonymous with conservative or Republican political beliefs. In fact, they are not even synonymous with one another.

There are several forms of “judicial activism” or “restraint”.

First, a judge can demonstrate “activism” or “restraint” in the way that decisions are crafted. In the case where a court, such as the U.S. Supreme Court, decides which cases it will accept: Does the court, in its formal opinion, address only the specific issue that prompted the court to hear the case in the first place? - or does the court address other issues that might be raised by the parties? Does the court address only the limited issue or issues necessary to determine the outcome? - or does the court address other issues, in addition, or in the alternative? Does the court limit its discussion to the evidence and the issues in the record of the case before it? - or does the court attempt to make broad statements (often referred to as “dicta”) intended to guide other courts in different types of cases that may arise? This type of judicial activism or restraint has very little to do with “conservative” or “Republican” versus “liberal” or “Democratic” political philosophy. A “conservative judge” in this respect may be socially liberal, while a judge who has very Republican-oriented political beliefs may be an “activist” on the court.

Independently, a judge can demonstrate activism or restraint in terms the effect that’s given to Congressional or other legislation. Does the court “strictly construe” the words that Congress or a State Legislature uses? - or does the court infuse its own ideas about social or economic policy? Again, this type of judicial activism or restraint has very little to do with whether a judge is politically “Democratic” or “Republican”, “liberal” or “conservative”. If the legislation in question is consumer-oriented, then a politically “conservative” judge might be inclined to ignore the text of the statute. This type of judicial activism is common in the area of preemption, particularly “implied preemption”, where Republican-minded judges who generally favor big business will rule that some Congressional policy prevents a State Court from holding a business accountable, even in cases where Congress has not specifically expressed an intent to “pre-empt” State Law; and even in cases where Congress has explicitly stated that the purpose of the legislation is to protect consumers; and, in fact, even in cases where Congress has explicitly stated in the legislation that the rights of consumers under the common law should be preserved.

Finally, there is judicial activism or restraint in the interpretation of the Constitution. Generally, the pundits and politicians refer to “strict construction” of the Constitution as a form of political “conservatism” and “judicial restraint”. In many cases, this is true. But “strict construction” also carries a temporal connotation, referring not only to a strict construction of the words that are used in the Constitution, but a construction that limits the intent and effect of constitutional provisions to the historical facts and circumstances under which they first arose. While this approach often produces results which are politically “Republican” or “conservative”, it is important to recognize that constitutional issues almost always involve a contest between the democratic will of the majority, acting through their elected representatives, and limitations on legislative (or sometimes executive or even judicial) power, in order to preserve more enduring principles and to protect the sovereign property rights, personal rights, freedoms and interests of individuals. Therefore, whether one favors “judicial activism” or “conservatism” in this sense often depends on whether he or she happens to be in the majority.

Safely nestled in the majority, people and their politicians generally favor “strict construction” and “judicial restraint” because it will, more often than not, lead to the triumph of legislative will.

When, however, legislation is socially “liberal” or “Democratic”, a politically “conservative” or Republican-minded voter, or politician, will want an “activist” judge who is willing to nullify the legislation on constitutional grounds. We frequently see this in Article III decisions, where judges who are politically “conservative” or Republican-minded effectively invalidate legislation on the basis that there is no “standing” to enforce it. In these cases, politically “conservative” judges interpret the Constitution “liberally” in a form of what may be described as “judicial activism”.

And, of course, because people are likely to be in the majority with respect to some issues, yet fall in the minority with resoect to others, people (including judges) tend to favor "restraint" with respect to some issues, yet "activism" with respect to others.

This is not to say that valid Separation of Powers concerns do not support the dismissal of many suits brought by ordinary citizen to challenge legislative or executive action or inaction by another branch of government.

Yet, when you hear a pundit or a politician on tv talking about “strict construction” or “judicial activism”, he or she likely doesn’t know, or doesn’t care, what he or she is talking about.

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