Word Games - Trying To Redefine "Judicial Activism"

Do you remember when today's "progressives" called themselves liberals? They don't today because the term "liberal" became too toxic, associated with all sorts of ills for which they were responsible. Thus the left rebranded. That is one word game the left follows, another is the art of "tenditious redefinition," to simply take a word that sums up an accusation against them, and turn it on its head. For example, does anyone actually believe that the People's Democratic Republic of North Korea is either democratic or a republic. At any rate, "tenditious redefinition" is what our left are doing today with the term "judicial activism."

"Judicial activism" has been used for years to refer to ignoring original intent and, equally, creating new law out of non-existent Constitutional cloth. Roe v. Wade (finding a right to abortion in the penumbras), Kelo v. New London (gutting the 5th Amenment), , Boumediene v. Bush (writing a role for the Courts into decisions of national security), and Trop v. Dulles (8th Amendment "evolving standards of decency"), all constitute clear examples of judicial activism. The polar opposite of "judicial activism" is originalism, where the Courts act within the constraints of the original intent of the drafters of our Constitution and existing precedent. The best example of this is the Heller case on the 2nd Amendment.

And yet now, the left, with Obamacare looking like its going to be overturned, is prepping the battlefield by claiming that to find Obamacare unconstitutional would be an act of "judicial activism." This is insane.

Obamacare would fundamentally change our federal government from one of enumerated powers - that it has been since 1783 - to one of unfettered power. As I point out in the post below, it would give the federal government the right to require that everyone who participated in the Boston Tea Party buy East India Trading Company tea. That is the polar opposite of what our Founding Fathers created when they signed onto the Constitution. To approve of this would be the most far reaching act of judicial activism our nation has ever seen.

According to the intellectually challenged EJ Dionne (the guy really is dumber than dirt), "It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.legislative power is supposed to rest in our government’s elected branches." Dionne would redefine "judicial activism" to be the mere striking down an act of Congress as unconstitutional, irrespective of whether it exceeds the bounds of the power of the legislature. And he is far from alone. Johnathan Chait in NY Magazine makes precisely the same argument, as does the NYT editorial board.

These arguments are not merely intellectually dishonest, they are insidious in their attempt to redefine words to suit their purposes. And while I disagree with every word Dahlia Lithwick writes at Slate, at least she brings a bit of intellectual honesty to the argument. Her argument is pragmatic, that the Court should uphold Obamacare because it makes the most sense in our modern era. Her complaint is an accurate one, that the conservative justices are looking back in time to define legislative power. She says they are looking back to 1804. She is only off by 21 years.

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