Tuesday, November 01, 2005

It's only "Activism" when you Disagree

Poor, unqualified Harriet Miers. Her best buddy, the President, threw her under the bus, thinking he'd get another crony a plum job just cause everyone loved him in his party. Well, he apparently forgot the disaster that was Katrina, the failure of his "signature item", Social Security reform, and other missteps. Harriet apparently didn't know the Constitution from a grocery list, so she was rejected. That and she once indicated that the government should stay out of personal decisions, like whether to get an abortion. So Harriet is gone, and now we have Scalito.

Say this for Bush...he didn't lie when he said he loved him some Antonin Scalia and wanted to appoint his clones to the Court. He forgot that the clones needed to be qualified with Miers, but he learned his lesson. If Scalito gets on the on the Court, Scalia will basically control 4 votes: his own, Thomas, Roberts, and Alito (aka Scalito). That's a pretty scary block, and if something happens to Stevens or Ginsberg, Bush would have a chance to nominate a 5th clone, and then we'd all be screwed.

I am intellectually honest enough to recognize there are two competiting schools of thought on the Constitution. The originalists (headed by Scalia) think that the Constitution and its meaning was set in stone in 1787, and that the amendments with their meanings were set in stone whenever they were ratified. That means whatever was kosher under the 8th amendment in 1791 is kosher today. Whatever the usage of "Equal Protection of the Law" meant in 1868 is what it means today. Under this world view, the Constitution can never be adapted to current standards or reinterpreted in today's society without formal amendment. Coincidentally, this view usually produces outcomes that dovetail perfectly with the political philosophy of the judge professing it....i.e. a "conservative" or one who misses the halcyon days of the 1950s when homos were in the closet, women in the home, minorities "knew their place" and white men controlled everything. How very convenient to find a judicial philosophy that produces outcomes you desire.

Not that the "Living Constitution" crowd is much better, and I say this as someone who subscribes to the notion that the Constitution was never meant to be set in stone, and that the Founders anticipated and expected us to reintrepret its meaning over time. They built in vagueness and flexibility so that it could be reinterpreted and would therefore stand the test of time. I've read the Federalist papers, and while the Founders had definite ideas of what different clauses meant, they also recognized that they didn't have all the answers to all the questions for all time. They meant for the Constitution to be amended and reinterpreted if it was going to last. The mistake they had made with the Articles of Confederation was making them too specific and too rigid. They also knew that people would argue over the meanings of phrases in the Constitution. Shoot, even the Constitutional Delegates themselves did not agree on the exact meaning of every phrase. And that was OK, b/c there was separation of powers. That meant Legislative, Executive, AND Judicial.

The last time I checked, John Marshall was a member of the Founding Generation that drafted the Constitution, and he's the one who gave the Supreme Court a veto power in Marbury v. Madison by allowing the Supreme Court to strike down laws that were unconstitutional. There was nothing in the document itself that allowed such a decision, but Marshall correctly surmised that a Court which could not strike down laws contrary to the highest law in the land was a useless Court. Jefferson disagreed strongly with this reasoning, but Marbury has stood the test of time and proved to be a good "reinterpretation" of the Constitution's role for the Supreme Court.

Scalia and his brood (Thomas, Roberts, and Scalito) would never have voted in the majority of Marbury in 1801. If the Constitution didn't say the Supreme Court could strike down a law, then they wouldn't read such a right into it. They undoubtedly would have upheld Plessy v. Ferguson in 1954 rather than use Brown to overturn "separate but equal". The idea of "one man, one vote" would never have been established in 1962. The concept of a right to privacy arising from the Bill of Rights certainly would never have been established. And when you take away Privacy, you allow the state to control access to birth control, deny women the right to choose abortion (and instead use a nice, rusty coat hanger), and legislating against gay people just because you think anal sex is "gross" (unless you get your wife or girlfriend to do it, of course) would be A-OK. Amendment 2 in Colorado that barred any locality from enacting gay rights legislation would have been upheld. Every school child would be mandated to start his/her day with a prayer to "Our Lord and Savior, Jesus Christ" even if they were Jewish, Muslim, or atheist. Affirmative action would have been struck down as soon as it reached the Court, leaving those who live in communities of no hope without any way of getting out, even with hard work. The Civil Rights Act of 1964 would have been struck down as an unconstitutional expansion of the commerce clause. Segregation would be the law of the land in the South, and the Civil Rights movement would have been much more bloody than it was with the courts standing up for African Americans and saying, "These people are citizens too, and you will treat them with equality and dignity."

Perhaps such a world warms your heart. For me, it sends chills down my spine. These "activist" decisions by the Supreme Court allowed America to come closer to living out its promise of an egalitarian democracy where ALL MEN (and women) ARE CREATED EQUAL. Bush wants to undo this promise of America with his court appointments. No should be suprised, because it's only what he promised he would do. 51% of the people last November said that was OK by them.

We are now about to sow what we have reaped by allowed George W. Bush to remain our President for a 2nd term. God help us all.

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