A note on "activist judges"

[SIU_Blue]

As a political science and pre-law student, I am getting sick and tired of this term being thrown around by every freeper in the world. With the recent ruling in California that forcing the pledge of alliegence on kids is unconstitutional, I am hearing it more than ever.

This case provides the best example of why the label "activist judge" is ridiculous I can think of. Here's the deal:

Deciding that "under god" is unconstitutional to make kids say is based on CONSERVATIVE IDEALS!!!! That's right!!! Why do repubs argue that Joe Hick can own an assault rifle? Because the bill of rights says that we have "the right to bear arms". To them, this means Joe Hick can own any weapon on earth. Any law professor will tell you that the conservative approach to the law favors a static and literal interpretation of the law. When a judge decides that "under god" isn't kosher, he/she is literally interpreting "seperation of church and state". Despite the fact that he/she has used the same logic as a judge who would throw out gun control, he/she is now "an activist judge".

Let's review. Conservative Logic + Conservative outcome = good judge, Conservative Logic + "Liberal" outcome = "activist judge"

:banghead:

:rant:

[cascadiance]

1. Tell them to study the Santa Clara vs. Southern Pacific Railroad case

back in the 1800's and specifically look at the head note and try to find how it's contention that corporations are "persons" is supported by the constitution, any laws passed, or even the detailed court records from that case. THAT was an example of judicial activism, and probably the worst case of it in our nation's history in terms of the effects it has had since that case's resolution.

Ask these freepers why that case is NOT an example of judicial activism! If they try to rationalize that it isn't, which if they support Roberts and other corporatists, they will try to do, then ask them to explain why Rehnquist dissented in a number of relevant cases and also felt that this notion of corporate personhood was a case of judicial activism as well.

Hopefully you can nail their partisanship masquerading as "protecting the constitution" and get them off of their high horses that way!

To find out more about this, read Thom Hartmann's "Unequal Protection" and other works by him. Thom's researched this topic well, and talks about it frequently on his radio show.

[SIU_Blue]

2. Will do, Thanks!!!

What gets me as well is that, technically, Brown v. Board of Education was judicial activism, since it went against Precedent, but you don't hear anyone (openly) screaming about that.

[Igel]

3. Most conservatives, like liberals arguing the right to bear

arms applies to the militia as defined in the late 1700s,would not argue "any weapon on earth" is implied.

They did cover 'straw man argument', did they not, in freshman comp?

What I don't understand is how the constitutional restriction against Congress passing a law respecting an establishment of religion trickles down to state- or county-run schools.

[SIU_Blue]

4. okay, you're right, but...

it's not as if a constitutional defense against gun control laws hasn't been argued, they do it all the time. Gun lobbys don't buy the "times have changed" thing.

[Geoff R. Casavant]

5. Through the 14th Amdt.

It has been interpreted as taking all the restrictions against Congress found in the other Amendments and applying it to state givernments as well.

The 14th Amendment also provides the best argument against Scalia-style originalism. (And my thanks to Jeffery Deaver for pointing this out in the latest Lincoln Rhyme novel, The Twelfth Card). The wording was intentionally left vague (equal protection? rights and privileges?) so that consitutional proscriptions against the states could shift and change as society developed.

Since state laws are more likely to impinge on ordinary folks than Federal laws are, the protections of the 14th Amdt are quite important, and for this reason a prospective SC justice should be required to discuss his/her opinions and philosophy in this regard, IMHO.

[Igel]

6. Thank you much.

I've been wondering that for quite a while.

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."