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Judges and academics need to wrestle with the realities of how Chevron bias and other administrative power is rapidly delegitimizing our government and creating a profound alienation. Rather than try to defend the indefensible, they need to face up to the dangers of governing by executive command, and how judicial subservience to such governance twists the very office of a judge. Remember what Chevron does. It requires the judges to follow agency interpretations of law in place of the law of the land.

It requires the judges to defer to executive interpretations and thus abandon their independent judgment. And where the government is a party, Chevron pre-commits the judges in favor of the legal position of one of the parties, in violation of the due process of law. Chevron deference is Chevron bias. Walker defends Chevron by presenting false alternatives—by suggesting a choice between judicial activism and judicial restraint.

How accurate is it to associate me and the other critics of Chevron with judicial activism? In fact, my view which is amply on record is that judges have a duty of judgment. To be precise, they have a duty to exercise their own independent judgment in accord with the law of the land. This is the core of their very office. Far from anything remotely resembling activism, it is a matter of judgment or understanding.

It is what Justice Marshall alluded to when, in Marbury v. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

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This duty of judges to exercise their own independent judgment stands in sharp contrast to any exertion of judicial will, and on this basis it is difficult to draw much of a distinction between judicial activism against the political branches and judicial restraint on their behalf. It is sad when apologists for administrative power misstate the positions of those with whom they disagree. And Walker is not as egregious in this as some of his fellow travelers.


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But it is necessary to state very bluntly that Americans do not face a simplistic choice between judicial activism and judicial restraint. If that were the choice, then, yes, we would have to give up on the Constitution and submit to either the will of the political branches or the will the judges. But we have another choice, for the very office of a judge is to exercise his or her own judgment, in accord with the law of the land.

And he cannot justify a judicial abandonment of independent judgment by suggesting that we must choose between judicial activism and judicial restraint. Chicago , and numerous articles. Before coming to Columbia, he was the John P. About the Author. The real question then would be which kind of bias is worse; is the cost of decreased judicial independence worth the benefit of diminished partisanship? However, systematic bias toward government probably creates a liberal bias on the margin, since government agencies by definition are there to regulate and impose government power, and liberals marginally favor government intervention more than conservatives.

In , a customs official and staunch loyalist named John Malcolm was stripped to the waist, tarred and feathered , and forced to announce his resignation under the tree. In the years leading up to the war, the British made the Liberty Tree an object of ridicule. British soldiers tarred and feathered a man named Thomas Ditson, and forced him to march in front of the tree. Following the British evacuation in , patriots returning to Boston erected a liberty pole at the site.

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For many years the tree stump was used as a reference point by local citizens, similar to the Boston Stone. When the Liberty Tree Mall was opened in , the sculpture was installed at center court. In October , the Boston Herald began running stories pointing out that the only commemoration of the Liberty Tree site was a grimy plaque, installed in the s, [4] on a building three stories above what is now the intersection of Essex and Washington Streets, a block east of the Boston Common.

Reporter Ronald Kessler found that the plaque was covered with bird droppings and obscured by a Kemp's hamburger sign. Local guidebooks did not mention it. To call attention to how obscure the site had become, Kessler interviewed waitresses at the Essex Delicatessen below the plaque on Washington Street. None knew what the Liberty Tree was. That's a roast beef sandwich with a slice of Bermuda onion, Russian dressing, and a side of potato salad," said one waitress who had worked beneath the plaque for 20 years.

Kessler persuaded then Massachusetts Governor John A. Volpe to visit the site. A photo of Volpe examining the plaque from a fire engine ladder appeared on page one of the 6 October edition of the Boston Herald. Logue, the administrator of the Boston Redevelopment Authority, said the park would be a 'handsome, open space' with grass, benches, plaques explaining the history of the tree, and 'the largest elm tree that can be transported and is resistant to Dutch elm disease.

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That promise was never fulfilled. In , funding was approved for a small park at Washington and Essex, which at that time was part of an area known as the Combat Zone.

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Boston's Old State House museum houses a remnant of the flag that flew above the Liberty Tree, and one of the original lanterns that were hung from the tree during the Stamp Act repeal celebration in Many other towns designated their own Liberty Trees. Most have been lost over time, although Randolph, New Jersey claims a white oak Liberty Tree dating to John's College in Annapolis, Maryland until , when it was felled after Hurricane Floyd caused irreparable damage to it.

In , knowing that the Liberty Tree was getting older, Acton students planted the Peace Tree, a maple that still stands today. The last surviving liberty elm in France from c.


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  • In , with the establishing of the short-lived Roman Republic , such a tree was also planted in Rome's Piazza delle Scole , to mark the legal abolition of the Roman Ghetto which was, however, re-instated with the resumption of Papal rule. The last surviving liberty elm in Italy, planted in to celebrate the new Parthenopean Republic , stood until recently in Montepaone , Calabria.

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    The tree was badly damaged in a storm in and has been replaced by a clone. Besides actual trees, the term "Tree of Liberty" is associated with a quotation from a letter written by Thomas Jefferson to William Stephens Smith : "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. From Wikipedia, the free encyclopedia. For other uses, see Liberty Tree disambiguation. Knopf Doubleday. Smithsonian Magazine.

    Old Landmarks and Historic Personages of Boston. Profusely Illustrated. Stanford University Press.