Comments by "" (@indonesiaamerica7050) on "Hunter Biden’s lawyers requesting a criminal investigation is ‘oddly coincidental’: Rep. Biggs" video.
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@AuroraColoradoUSA EARLY HISTORY OF THE TERM "JUDICIAL ACTIVISM" Keenan D. Kmiec
A. In Search of the Earliest Use
The idea of judicial activism has been around far longer than the
term. 3 Before the twentieth century, legal scholars squared off over the
concept of judicial legislation, that is, judges making positive law.
"Where Blackstone favored judicial legislation as the strongest
characteristic of the common law, Bentham regarded this as an usurpation
of the legislative function and a charade or 'miserable sophistry."
Bentham, in turn, taught John Austin, who rejected Bentham's view and defended a form of judicial legislation in his famous lectures on jurisprudence.' In the first half of the twentieth century, a flood of scholarship discussed the merits of judicial legislation, and prominent scholars took positions on either side of the debate.
Criticism of constitutional judicial legislation was particularly vehement during the Lochner era. Critics assailed the Court's preference for business interests as it repeatedly struck down social legislation in the name of substantive Due Process. While some modem scholars consider
Lochner and its progeny virtually synonymous with "judicial activism,"
the term is conspicuously absent from contemporaneous criticism. The
New Deal and the "revolution" of 1937 ushered in another spate of critical
commentary, but again, contemporaneous literature does not mention "judicial activism" by name. Years later, after the justices agreed that the New Deal was on firm constitutional ground, the term finally surfaced in legal discourse.
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