"Legislating from the Bench."

We hear it all the time. But what Exactly IS "Legislating from the Bench?"

Currently, the phrase "legislating from the bench" means little more than "I know it when I see it." But the term has no definition in law. Despite being thrown about carelessly, the notion of legislating from the bench appears to be based on a strict conservative approach to judicial interpretation of the US Constitution. So what is this conservative approach?

(1) a reluctance to stray beyond the literal 18th century constitutional text when applying Constitutional principals to 21st century issues;

(2) a posture of judicial deference toward the executive branch, and other government and corporate institutions; and,

(3) a strict reliance on prior Court precedence when formulting judicial decisions.

This strict conservative approach is most often invoked during discussion of the Roe v. Wade decision.

But I wonder what the conservative approach would have meant for some of the famous US Supreme Court decisions of the past century; decisions such as:

- Brown v. Board of Education (1954) - the Court held that "separate but equal" facilities violated the Equal Protection Clause of the Fourteenth Amendment, overturning the precedent established by Plessy v. Ferguson (1896). Brown v. Board was a radical decision that had a radical and positive effect on American civil rights.

- Mapp v. Ohio (1961) - held that evidence seized in violation of the Fourth Amendment cannot be used as evidence. The "exclusionary rule" was originally devised by the Court in Weeks v. United States (1914) and is now the primary way that the Fourth Amendment is enforced. Exclusion of tainted evidence is not mentioned at all in the text of the Fourth Amendment.

- New York Times v. Sullivan (1964) - the Court required that public officials suing for defamation must prove actual malicious intent, an unprecedented requirement that was not previously in defamation torts. This decision radically altered the defamation torts of libel and slander which had existed for centuries and expanded freedom of the press.

- Griswold v. Connecticut (1965) - the Court struck down a law restricting contraceptives as a violation of the constitutional "right to privacy." The "right to privacy" is not explicitly mentioned in the text of the Constitution, but the Court held that it could be inferred ("penumbra") by reading several of the rights in the Bill of Rights in combination.

- Miranda v. Arizona (1966) - the Court held that the Fifth Amendment requires that a defendant be informed of his rights, such as the right to an attorney, before being interrogated. The Constitution does not explicitly say this, but the Court held that the Fifth Amendment clause aginst being being forced to incriminate oneself required that people under arrest be warned about waiving their rights before being questioned.

- Katz v. United States (1967) - the Court held that the Fourth Amendment protected the people from electronic eavesdropping even when it is carried out without a physical trespass into the home. This decision dramatically reversed the precedent established by Olmstead v. United States (1928). Katz also held that a specific warrant is required before the government can execute a wiretap, and the warrant must be limited in scope and duration.

- New York Times v. United States (1971) - the Court held that the government could not impose a prior restraint upon the publication of the Pentagon Papers. In it’s decision the Court refused to defer to the government's claim that the release of the Pentagon Papers would jeopardize national security.

Here’s the point of all this: how might a conservative Supreme Court decide the above cases without the precedents in place today?

Would the Court have deferred to the Nixon administration in the Pentagon Papers case? Would it have ruled strictly according to previous precedent in Plessy v. Furgeson or in Brown v. Katz? Would it have strictly adhered to constitutional text in Griswold? Would it have been reluctant to create the warning rule in Miranda?

In each case would a conservative approach have strengthened and expanded our individual civil rights under the Constitution? How did you form your opinion?

Anyway, I would like to see a more concrete discussion of how the conservative approach toward Constitutional interpretation would have worked instead of the more liberal interpretations that were actually employed in deciding the cases above.

"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government..." -Patrick Henry