The Spitfire's Grill
Regular Rants from a Pragmatic Liberal
Tuesday, April 05, 2005
 
The GOP Judicial Activism Challenge
Thanks to Senator Cornyn (R-TX) and Tom Delay (R-TX), its time I laid out my GOP Judicial Activism Challenge.

There's no good definition of Judicial Activism, so let's just define it as "making the Constitution say something it doesn't". The way I see it, there are TWO types of Judicial Activism: Significant Logical Leaps & Just Making Stuff Up. Obviously, making stuff up is a farther stretch of our Constitution than a series of logical leaps, right? So let's look at them in detail:

  1. Significant Logical Leaps. The word abortion certainly isn't in the Constitution. It is derived from the concept of privacy. But is privacy in the Constitution? Well, not quite. It is derived from several bits and pieces (search and seizure, jail w/o trial, 9th & 10th Amendments, etc). So logically, there's a logical leap that we have a Constitution Right to Privacy. Furthermore, things like abortion and euthanasia are logical leaps that, assuming we do have some right to privacy, we have a right to these things as well. I personally am "mildly pro-choice" to borrow from Secretary Rice, and I believe in the Roe v. Wade ruling. But, I grant that it exists on somewhat shaky grounds. No liberal politician would admit it, but most know it. This is obviously the part of the Constitution that the Religious Right and their Judicial Activism craze would like to wipe out.
  2. Making Stuff Up. This is fun. When Justice Kennedy wrote that Capital Punishment for individuals under 18 was unconstitutional, he argued that it went against some "prevailing opinion" and that foreign countries didn't do it either. Did I agree with the ruling? Yes. Did I like how he justified it? Absolutely NOT. But this is quite common. How do you think we justify censorship laws? We use the concept of American Values to simply overlook the First Amendment when necessary. This is how the FCC, with its new censorship-crazed Chairman (as opposed to its old censorship-crazed Chairman...) can get away with the significant amount of censorship it plans to impose.
Now, logically, Making Stuff Up is more judicially activist than making logical leaps such as abortion, no? So we get to the...

GOP Judicial Activism Challenge:

MAKE UP YOUR MIND. If you want to eliminate the Judicial Activism #1 listed above, fine, but #2 has to go also. For our Constitution's (and God's) sakes, have some consistency.

Oh, and threatening judges isn't very consistent with this either.


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