Thursday, September 25, 2008

'activist' judges

Can we please put to rest this notion of activist judges?

It's a line I keep hearing from conservative friends of mine who are upset by judges who don't follow the strict constructionist philosophy of Antonin Scalia. In Scalia's definitively conservative view the only interpretation of the Constitution is the one that was held at the time of its writing. Any judge who views the Constitution as a living document whose meaning and interpretation changes as America ages, is overthrowing laws based on their personal views.

Under such a reading, the landmark Brown v. Board of Education, which struck down segregation was a blatant case of judicial overreach. A group of activist judges on the U.S. Supreme Court took it upon themselves to overthrow the entire social order in the South, and to discard a hundred years of segregation.

That was hardly a constructionist reading of the issue. It clearly was justices overturning laws "simply because they don't like them."

I understand the conservative reasoning on this, but I don't buy it. This is a case of justices doing something just and interpreting the law, which the Constitution requires that they do, rather than merely advancing a political philosophy.

And really, would you want a strict constructionist reading of the Constitution? Even if such a thing were possible -- it's not, because the people who wrote the Constitution lived in a different time, with different social values and experiences from ours -- I'd hate to live in a 21st century governed by the attitudes, mores and beliefs of latter 18th-century America.

We're the same country in the sense of continuity, but our demographics, technology, economy, politics, and geopolitical position are radically different from theirs. Even Thomas Jefferson felt that the nation should ditch the Constitution every 30 years or so, and start again from scratch, to reflect the changes in society.

If you wish to assert a constructionist view of the Constitution, the burden of proof is on you to show how a criticism of "activist judges" can be leveled in the case of same-sex marriage rules but does not apply in case Brown v. Board of Education -- which, it should be noted, also overturned the court's previous "Separate but Equal" Plessy v. Ferguson ruling.

Another disastrous constructionist rulings is Dred Scott, which is widely regarded as one of the worst U.S. Supreme Court decisions in history.

The Constitution makes the point quite directly that the rights not expressly given to the federal government are reserved for the states. The rights not expressly given to government at all belong to people.

So while I disagree with Roe v. Wade, I don't see that as ruling by judicial fiat. It's a statement that the Constitution does not give government -- at any level -- the right to dictate whether a woman can have an abortion. And since the government lacks that right, it means the individual woman has the right to choose.

Copyright © 2008 by David Learn. Used with permission.

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