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    #1

    Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    Context:

    Over the years, Justice Thomas' jurisprudence has evolved into what is arguably the Court's most conservative. He is considered a champion of two conservative judicial doctrines - originalism and strict constructionism.
    Originalist doctrine seeks to discern the original intent of the Constitution's framers. It is antithetical to the judicial activism many conservatives liken to legislating from the bench to achieve political ends. The most polarizing example of judicial activism revolves around Roe v. Wade, which bore the right to an abortion from the right to privacy. An originalist would argue that the framers never contemplated the right to an abortion, thus only Congress or the states can manufacture such a right. The originalist is not concerned that the right to abortion exists, but that it should be created though the appropriate means rather than a politically-charged court decision.

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    #2

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    It (Originalist Doctrine) is antithetical to the judicial activism which many conservatives liken to legislating from the bench to achieve political ends.

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    #3

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    Quote Originally Posted by 5jj View Post
    It (Originalist Doctrine) is antithetical to the judicial activism which many conservatives liken to legislating from the bench to achieve political ends.
    Thank you.
    But I still don't get it. Which refers to "judicial activism"?


    Liken what to?

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    #4

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    Quote Originally Posted by NewHopeR View Post
    But I still don't get it. Which refers to "judicial activism"? Yes


    Liken what to? To what immediately follows 'liken to'.
    It (Originalist Doctrine) is antithetical to the judicial activism which (relative pronoun referring back to 'judicial activism; direct object of the verb 'liken') many conservatives (subject of the verb 'liken') liken to legislating [from the bench] [to achieve political ends](prepositionil object of 'to'.

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    #5

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    Quote Originally Posted by 5jj View Post
    It (Originalist Doctrine) is antithetical to the judicial activism which (relative pronoun referring back to 'judicial activism; direct object of the verb 'liken') many conservatives (subject of the verb 'liken') liken to legislating [from the bench] [to achieve political ends](prepositionil object of 'to'.

    Got it. Thank you.

    BTW, what does "legislating [from the bench] " mean?

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    #6

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    Quote Originally Posted by NewHopeR View Post
    BTW, what does "legislating [from the bench] " mean?
    It means 'making law as a judge'.

    In the Common Law system that is the basis of British and American law, judges interpret the law. Once they have made a decision on how a law should be interpreted, their decision is binding on judges in courts at the same or lower level until/unless a judge in a higher court re-interprets the decision.

    To take a simple example: suppose a law is passed saying: "Dropping litter is an offence punishable by a fine of 100". A person throwing breadcrumbs down for pigeons is charged with dropping litter. Lawyers for the prosecution will argue that breadcrumbs are litter; lawyers for the defence will argue that they are not. The judge will decide, and his/her decision then becomes part of the law.
    Last edited by 5jj; 23-Jan-2012 at 16:07. Reason: typo

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    #7

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    Quote Originally Posted by 5jj View Post
    It means 'making law as a judge'.

    In the Common Law system that is the basis of British and American law, judges interpret the law. Once they have made a decision on how a law should be interpreted, their decision is binding on judgesin courts at the same or lower level until/unless a judge in a higher court re-interprets the decision.

    To take a simple example: suppose a law is passed saying: "Dropping litter is an offence punishable by a fine of 100". A person throwing breadcrumbs down for pigeons is charged with dropping litter. Lawyers for the prosecution will argue that breadcrumbs are litter; lawyers for the defence will argue that they are not. The judge will decide, and his/her decision then becomes part of the law.
    Excellent!
    Thank you.

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    #8

    Re: Liken (what) to? Does it mean "liken it (Originalist doctrine) to"?

    With all respect, 5jj, the term "legislating from the bench" or "judicial activism" means a whole lot more than simply the fact that judicial decisions form a body of "case law."

    It is when judges go beyond the boundaries of judging (deciding how to apply written law to a particular case) and into legislating (deciding that their opinion is what the law should be).

    There are varying opinions, of course, but when a judge decides, for example, to remedy prior discrimination by directing the taxation and expenditures of a school district, that strikes many as legislating from the bench.

    Whenever judges substitute their esteemed opinion about how the world should work for the written statutes they are called upon to adminster, they can be said to be engaging in advocacy.

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