Recently in Judicial activism Category

Constitutional-Scholar-in-Chief Can't Grasp Basics of Supreme Court

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What Jerry Seinfeld said of lawyers also applies to the Supreme Court:

"To me, a lawyer is basically the person that knows the rules of the country. We're all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box."

In the case of the highest court in the land, the set of rules inside the top of the box is the Constitution.

Conservatives complain about judicial activism, which is when judges make up their own rules about how the game should be played. Imagine being halfway through a game of Risk, and one of the players decides to start reading new rules into the game that greatly affect the outcome.

Or, in the middle of the game, four of the six losing players decide that some printed rules no longer apply, so they can catch up to the two leading players. They could just dismiss the rules as old, dusty words that no longer apply to 21st century society. Or, they could rationalize that they are being democratic and more of them want the rules to change than want them to be the same.

The latter is the tactic the president is using to convince the public that his healthcare overhaul plan should stand.

"Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said at a news conference with the leaders of Canada and Mexico.

In other words, yes, we sat down to play this game according to the written rules. Now we're changing it, and there are more than us than there are of you.

I remember learning in elementary school that the Supreme Court protected the minority from the tyranny of the majority. If the majority wanted to discriminate against people with black skin or people with red hair or people with green eyes, the Supreme Court wouldn't let it happen. So it's a little disconcerting to hear a constitutional scholar declare that majority rules and the Supreme Court shouldn't do anything about it.

Furthermore, he has the gall to say that the originalist Supreme Court justices are the judicial activists. Somehow these justices, who denied themselves wide latitude to rule on their whims by tethering every decision to the original language of the Constitution, are the activists.

Americans wouldn't let someone change the rules of a board game halfway through the game. They shouldn't let it happen in real life either.

Any opposition to Prop 8 ruling should be based in law

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Whether or not we think gay marriage is good public policy, we must form our opinion on Judge Vaughn Walker's decision that Prop 8 is unconstitutional on the law. It's insufficient to say only that gay marriage devalues traditional marriage, and point to the troubling social consequences experienced by countries that have legalized it. While I agree with that sentiment, it's irrelevant considering that this is a legal matter. After all, we're strict constructionists, aren't we?

Therefore we should root any disagreements we have with Judge Walker's decision in legal analysis. The Heritage Foundation released this statement in response to the ruling:

Judge Walker's ruling today similarly abrogates the rule of law. Marriage has enjoyed unique status because unions of husband and wife are, in fact, unique, and because they uniquely serve the common good in ways that same-sex combinations simply cannot. We are confident the Supreme Court will reject Judge Walker's view that the people of California cannot protect the meaning of marriage in their state constitution.

I agree with the sentiment, but nowhere do I see in the statement where Walker's ruling was incorrect in a legal sense. [continue reading]

Progressives are now strict constructionists?

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Generally speaking, conservatives are what is commonly known as strict constructionists, meaning that the Constitution should be strictly interpreted based on the text as it was originally written, and that its meaning does not change over time. Progressives, on the other hand, believe that its a "living document" that needs constant reinterpretation based on society's changing values and so language can be read into it that isn't necessarily there.

The living document approach exists because the Constitution, which was written to expressly limit the powers of the federal government, doesn't square with Progressive notion that a huge government is a panacea for society's ills. The Constitution is a fairly large obstacle to them in that regard, and so it must be marginalized or reinterpreted as necessary.

To that end, Progressives are extremely successful at changing the meaning of words. For example, they call themselves "liberals," a label that was commonly only applied to small-government advocates like the Founding Fathers--who we are now forced to refer to as "classical liberals" to differentiate them from modern-day big-government statists who fashion themselves with a label that used to appeal to Americans before the definition was tarnished. According to Modern Political Philosophy:

It is important not to confuse this classical liberalism with the political ideology known as "liberalism" in the United States in the twentieth century. In fact, the ideology of classical liberalism is closer to what today is a current of conservatism in the United States....Also central to classical liberalism was a commitment to a system of free markets as the best way to organize economic life.

Modern-day "liberals" merely co-opted the term because it sounded better and hid their true intentions, which are unpalatable to individualist Americans. This penchant for euphemisms exists everywhere in their lexicon: wealth redistribution is now called "economic justice," racial quotas are "affirmative action," tax increases are "revenue enhancements," the War on Terror is now "an overseas contingency operation," and so on.

Now, I'm hearing a new Progressive rebranding effort (a layperson would call it "lying") vis-a-vis the Elena Kagan nominations. On Monday night, Fox News' Andrew Napolitano had this exchange with congressional attorney Mark Levine, who was there to defend Kagan.

LEVINE: I'm a strict constructionist. I believe in following the literal language of the Constitution.

Later in the segment, Napolitano asked him if Kagan thinks the Constitution is a living, breathing document.

LEVINE: She's not an originalist. In other words, she doesn't believe that whatever the Founders believed in--things like slavery and no women's rights--have to hold true today. But she is a textualist like myself. I firmly believe in the text of the Constitution.

Jay Sekulow, chief counsel for the American Center for Law and Justice, who was also on the panel, called out Levine.

SEKULOW: They are changing the definition of what we mean by textualists or originalists. That's what Mark [Levine] just did.

Levine tried to parse the meaning of "textualism" further.

LEVINE: I do want to make a distinction if I could, very briefly, between liberal textualism and conservative textualism....Liberals believe that blacks are people and therefore are protected under the Fourteenth Amendment even though the Founders didn't believe that...

[...]

SEKULOW: This is the typical liberal attempt to redefine what words really mean!

And they're so successful at it they even have us using the "liberal." In another ten years, conservatives might be unwittingly calling them strict constructionists. Levine and Kagan are "living document" people--do you really think Obama would appoint someone who is going to say that the Constitution greatly limits federal powers?

The irony here is that Progressives are trying to change the meaning of a word so that they might be seen as the group that believes that the meanings of words can't be changed.











IngeMusings
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This blog attempts to add perspective and context to local and national politics, through a variety of disciplines, such as history, economics, and philosophy--all tempered with common sense. About the author

Eric Ingemunson's commentary has been featured on Hannity, CNN, NBC, Inside Edition, and KFI's The John and Ken Show. Eric was born and raised in Ventura County and currently resides in Moorpark. He earned a master's degree in Public Policy and Administration from California Lutheran University. As a conservative, Eric supports smaller government, less taxation, more individual freedom, the rule of law, and a strict adherence to the Constitution.
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