Our Court's Modern Dred Scott Decision

Five members of the unelected politburo that is our Supreme Court have created a new Constitutional right out of thin air - the right of homosexual to marry, in today's 5-4 decision in Obergefell v. Hodges. In so holding, they give their newly preferred policy decision a bare patina of bull shit legalese. But at the same time, they don't even try to hide the fact that this was a pure policy decision.

I won't bother to recount from the majority decision that claims justification under the Equal Protection clause and substantive due process, then pats themselves on the back for effecting social change not supported by the people of this nation. Their arrogance is beyond stomaching. Let's go to the dissents. Ironically, the dissent from CJ Roberts, infamous for his decisions in Obamacare, is directly on point:

Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.”

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description — and dismissal — of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” . . .

By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority — actually spelled out in the Constitution.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. . . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. . . .

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

This decision will make the controversy set off by Roe v. Wade seem like the smallest of ant hills. It will be used by the left to punish the religious and further drive religion from all aspects of public life. It may well set this nation on a path to insurrection, much like the Dred Scott was a trigger for the Civil War and much like the punitive laws stipping the colonists of their rights set this nation on a path to Revolution. The five members of the Supreme Court who decided this case will no doubt be toasted around D.C. tonight and go to sleep quite happy with themselves. They will, I think, have a lot of blood on their hands before this one ends.

As I wrote below, our Court system needs to root and branch reform. As Chief Justice Roberts correctly notes, our Founders could not possibly imagine the role the activist judiciary has taken upon itself.

Update: After composing the above, I see that Mike Huckabee has come to the same conclusions. That said, I prefer the way he styles this as judicial tyranny. This from Hot Air:

“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do-redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.

“This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”

“The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the laws of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.”

Bobby Jindal has a similar take.

Bookworm has some very cogent thoughts on the importance of this decision and how the left will try to use it:

This ruling may be the most consequential ruling ever to issue from the Supreme Court. Why? Because the Left will use it to destroy all religions except Islam (which they’re afraid to touch). They’ll use a magical new right to destroy one of the bedrock First Amendment rights.

Do read her entire insightful post.

And how did I miss Justice Scalia's dissent:

. . . [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. . . .

. . . It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty” — at the time of ratification or even today — the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

. . . [T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. . . . They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

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Scalia On Originalism & Activism

Although the election Tuesday is incredibly important, it is the Supreme Court that has had the longest lasting and most deleterious effect on our nation. Justice Scalia explains the problem - and at the start of this interview, the very simple solution.



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Gingrich's Attempt To Redress Judicial Activism

Why does the Supreme Court have the power to decide whether a law is constitutional? Because they arrogated themselves that power near two decades after the signing of the Constitution, in the case of Marbury v . Madison. Article III of the Constitution is silent on any such power.

Why is the Supreme Court's say on the constitutionality of any particular law final, subject only to change by a Constitutional amendment? Again, because the Supreme Court said so, this time in the 1958 case of Cooper v. Aaron. That case represented a vast expansion of the power of the Court first articulated Marbury.

Newt Gingrich raises all of this as a major plank in his campaign for the President. And for all the impotent wailing and gnashing of teeth by conservatives on this issue over the past half century, Gingrich is the first person to come up with a comprehensive plan to restore the Constitutional balance of powers that existed at the time the framers drafted our Constitution. Gingrich's position paper on this issue can be found here.  He is under attack from all sides for merely raising the issue, let alone the boldness of his plan.  The plan he proposes is indeed a "first draft," and some of his proposals will likely not work.  But that in no way means his plan as a whole is unwarranted, nor that all of his ideas are unworkable.

As a threshold matter, I've been pounding on the issue of our judiciary as an unelected politburo for years.  I am in complete agreement with Newt on this issue.  To quote from my post, The Supreme Court: Originalism, Judicial Activism, & America's Future:

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. In the last week, we have been treated to the best – an originalist Second Amendment decision - and worst – an activist habeas corpus decision - of the Supreme Court by Judges applying those two schools of thought.

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplacable tool to remake society.

The Goracle did a good job of describing the "living Constitution" theory in his 2000 election campaign, as well as demonstating the left's total embrace of judicial activism:

I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.

That is scary. That is pure judicial activism of the type which:

- came within one vote yesterday of holding that the Second Amendment does not provide an individual right to carry arms, thus giving the government the power to disarm all Americans . . .

- now allows government to take your private property and give it to another private party for their own purpose, even though the plain language of the 5th Amendment clearly forbids it as unconstitutional.

- now holds that cherry picked foreign law can be used to interpret the U.S. Constitution, thus allowing our modern activists to arrive at any policy decision they so desire and then to turn it into Constitutional law, irrespective of how far removed it may be from the original meaning of the Constitution.

- in a vast expansion of the power of the Court, and in what may turn out to be the most costly decision ever to our nation, the activist wing of the Supreme Court twisted precedent out of recognition to arrive at a decision that has inserted the Judicial Branch into the national security and defense roles of our President and Congress. The activist wing of the Supreme Court has taken for itself powers clearly authorized only to the other branches by the plain language of the Constitution. As law professor Kenneth Anderson, cogently opined, "the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work."

- have greatly limited the use of the death penalty and the means by which states can apply it. While some of these restrictions are valid as a means of insuring due process, others are examples of pure policy decisions by the Court.

- have created numerous rights out of whole cloth, taking social policy, such as whether to allow abortions and under what circumstance, out of the hands of the people. In creating these new rights, the Court is making Constitutional law of their personal policy preferences. (Note here that originalists hold questions such as abortion to be outside the text of the Constitution and thus wholly states rights issues, beyond the scope of the Supreme Court's jurisdiction and beyond the competence of the federal government to regulate.)

- have read into the anti-establishment clause a "wall between church and state" and used that theory to dismember any hint of religion in the pubic square, thus promoting, whether intentionally or in the breech, the religion of the left - radical secularism.

- overturned the votes of over 7 million Californians who said gay marriage should not be made legal within that state.  This was the decision of an unelected gay judge who held that gay marriage is a Constitutional right of all Americans under the Equal Protection clause.   At the time the Equal Protection clause was written, virtually every state in the Union had laws against homosexuality. There is no question then that homosexuality was not intended to be within the sphere of “equal protection under the laws.” Thus this is an issue of social policy left solely to the province of the people to decide.

There is no greater internal threat to our nation than an activist Supreme Court acting without respect for democracy and unconstrained by the original intent of the founders. . . .

When Newt says that the Courts were meant to be the least powerful branch of government, he is correct. And when Newt says that the Founders never envisioned a Supreme Court with the power it wields today - citing to the writings of Alexander Hamilton and James Madison in the Federalist Papers - he is also correct. Thus have the Courts become a politburo.

The Constitution provides for two means of amendment. Neither of those means include the unilateral amendment of the Constitution by Judges imposing their own view of what the law should be.

Newt's proposals to redress that balance are far reaching. The problem of course is how to limit the power and reach of the Court without making of the judiciary a less equal and wholly political body (though arguably it is a wholly political body today). We do not want to create of ourselves a new UK, where the Courts are neutered and the Parliament operates as a tyranny of the majority. It is a Gordian knot that Newt seeks to untie.

Hot Air's Jazz Shaw touches on this problem in his post, Newt's War On The Courts. The post, and the citations, are full of misstatements by Jazz as well as the people to whom he cites. In regard's to Gingrich's plan to impeach judges that depart from the Constitution in their decisions, there is much huffing and puffing that Article III of the Constitution provides that federal judges "serve for life." They are reading a different article III than I am. Specifically, Art. III, Sec. I provides "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . ." The question than becomes, what defines "good behavior." Clearly, the failure to adhere to the laws of our nation would be a violation of good behavior. That is what Gingrich is getting at, but unfortunately he does not bring clarity to his standards, thus leaving himself open to charges that impeachment would be used as a tool to punish judges merely for coming to a conclusion that he does not like. That is certainly not what Newt is arguing for in his position paper.

Jazz cites approvingly to an attorney blogging at OTB, Doug Mataconis, who opines:

In his position paper, Gingrich engages in a wholesale attack on the structure of American government as established in the Constitution, and as it has existed for the past two centuries, proposing to replace it with a system where majorities are given even more control over the levers of state while minorities are increasingly denied access to the one branch of government most likely to protect them from a rapacious and oppressive majority. It is an attack on the Constitution, on the Rule Of Law, and on individual liberty. The fact that it received so many cheers last night is very disturbing.

To call that analysis overheated, one sided and, indeed, superficial would be overly kind. As I've enumerated above, a Supreme Court that acts as a super-legislature presents a clear and present danger to our nation. What Shaw and Mataconis are arguing for is preservation of a system already broken and being misused to work fundamental change to our Constituion. Newt isn't advocating destruction, he is advocating repair. Nor is he advocating subjective control over the Courts, he is demanding fidelity to the Constitution as it was written and approved.

What Gingrich needs to advocate is passage of a law limiting the scope of a Court's use of authority to decide future cases, on one hand requiring that all Courts give the highest possible priority to the original intent of the drafters, while on the other hand proscribing use of "evolving standards" of society and foreign law to decide cases of Constitutional law. Now, can activist judges get around the above standards with a bit of creativity. Sure, but it would make it much harder and the devices they use would be far more obvious, thus opening themselves up to punitive measures in cases where the failure to adhere to published standards is clear and convincing. I would note that such a law would require careful analysis of the 200 plus years of existing precedent to see where wholesale application of originalism would throw our nation into chaos, such as in a total return to the original meaning of the Commerce Clause. That is an issue that would have to handled with careful guidance from the legislature. That said, such a law would go a long way to furthering Gingrich's effort to reestablish the Constitutional balance with the Courts as a co-equal branch of government rather than an extra-constitutional super-legislature.

Newt skips advocating for such a law among his suggested fixes, which is a gaping omission. He does, however, favor laws that would limit the jurisdiction of Federal Courts - something which has a long history and would go a long way to limiting the Court's ability to impose new social policy.

Newt is drawing a tremendous amount of fire for many of his other suggested fixes, such as abolishing entire Courts and using the power of the purse to prevent enforcement of decisions. These do indeed seem actions fraught with problems of their own. But this is a first draft.

The hue and cry being raised against Newt's plans seem to be largely an attack on taking any action to redress the Constitutional balance. But Newt has this exactly right. Something must be done to end our Court's tyrannical reign. It does threaten the very fabric of our society.

Update: Welcome Larwyn's Linx readers.

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Obamacare, Tribal Law & "Judicial Activism"

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ““difficult to perceive any limitation on federal power" . . . and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Judge Roger Vinson, Order Granting Summary Judgment, Fla. v. Dept. of HHS, 31 Jan. 2011

I concur with Judge Vinson's decision completely. There is no question that, at the time of the founding, the Commerce Clause was designed solely to prevent trade barriers being erected between the states. Judge Vinson pointed out in his decision that the Supreme Court deviated from the original intent of the drafters by vastly expanding the powers of Congress under the Commerce Clause during the New Deal. But even that expansion has not been unlimited and the Court has never ruled that the Commerce Clause gives the government the power to proactively force people to take actions as a mere consequence of citizenship.

Lawrence Tribe begs to disagree with Judge Vinson in a NYT op-ed. Tribe dismisses Judge Vinson's reasoning out of hand, disingenuously calling the difference between "activity" and "inactivity" a distinction without a difference. He further opines that any claim that Obamacare is unconstitutional is purely partisan politics. Ann Althouse, herself a law professor, has a field day with Tribe's op-ed.

Tribe is very much of the "living Constitution" school, arguing that the Supreme Court justices are free to amend the Constitution per their whim as the "need" arises - and the need always arises when the left wants it to. Think Roe, Boumediene, Perry v. Schwarzanegger. The blogger at Marginal Revolution, responding to Tribe, makes a tongue in cheek argument that the living Constitution could well be used to support the right in this scenario:

“What Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.”

Heh. Perhaps we originalists should be pondering a doctrinal shift.

On a related note, Thomas Sowell does an excellent job of explaining how the left, fully in the spirit of Orwell, is redefining the term "judicial activism"

. . . The new definition of “judicial activism” defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don’t need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a “judicial activist.”

A judge who lets politicians do whatever they want, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the Left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution. . . .

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James Madison On Originalism & Judicial Activism

Doug Ross has a very good post today highlighting the differences between originalism - the proper role of judges - and those who embrace the "living constitution" theory. I've also posted on this topic in The Supreme Court: Originalism, Activism & America's Future:

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. . . .

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplaceable tool to remake society. . . .

Doug makes many good points in his post, and I urge you to read it. Most notable in his post was this warning from one of our founding fathers, James Madison:

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

Truer words were never spoken.

The Constitution contains not one, but two methods by which we, the people, can amend the Constitution. Neither of those methods involve unelected judges deciding to amend our founding document per their whim. Left to their own devices, the Supreme Court has made radical changes to the very fabric of our nation over the past half century. The Supreme Court, unencumbered with any requirement to adhere to the intent of our founder, has been and remains the single greatest threat to the viability of our nation. The solution to this problem is simple, a law - or a Constitutional Amendment - limiting the discretion of judges deciding Constitutional questions to the original intent of the drafters and those who voted to approve our Constitution. That this was not included in Article III of the Constitution was a rare lack of foresight by the drafters of our Constitution.

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Perry v. Schwarzenegger: A Modern Roe v. Wade (Updated and Bumped)

Are judges required to simply interpret the Constitution, or do they have the inherent power to unilaterally amend it if they don't like portions of it? Unfortunately, there are today far too many judicial activists on the bench who seem to believe the latter. It is the very height of arrogance. And indeed, judicial activism has proven one of the most destructive forces in our society over the past century.

Prior to yesterday, the seminal example of this judicial activism run amok was Roe v. Wade, where Justice Harry Blackmun, pointing not to any right found in our Constitution, but rather to a "penumbra" surrounding those rights, declared abortion a Constitutional right. Even Ruth Bader Ginsburg criticized that decision. And indeed, it has proven a decision that has distorted our politics and political discourse for the past forty years. Now we have a decision equally ignominious.

That 137 page decision was rendered yesterday by a gay U.S. District Court judge, Vaughn R. Walker, in the case of Perry v. Schwarzenegger. At issue was whether the federal Constitution protects the right of homosexuals to marry. In 2000, California voters overwhelmingly approved Proposition 22, a law declaring that California would only recognize and sanction marriages between a man and a woman. Gay rights activists, having lost in the court of public opinion, turned to a sympathetic state court system in order to override the will of the people. In 2006, the California Supreme Court agreed with the activists and invalidated Prop 22 on state Constitutional grounds. In 2008, over 7,000,000 Californians went to the polls to vote for Proposition 8, overriding the Supreme Court and amending California's Constitution so as to provide for marriage only between a man and a woman. Yet again seeking to thwart the will of the people of California, gay activists brought the Perry case before the federal Court, arguing that the equal protection clause and the due process clause, both of the 14th Amendment, give gays a Constitutional right to marry.

Any contention that those clauses support a right of gays to marry is ludicrous. It is beyond any contention that the people who drafted our Bill of Rights and, close to a century later, the people who drafted our 14th Amendment, did not consider even homosexual relations to be a right of American citizens, let alone gay marriage. To the contrary, homosexuality was then subject to criminal sanction. As I have written previously:

The historical record clearly establishes that, at the time the Bill of Rights was approved and the near century later, when the 14th Amendment was approved, our government exercised unchallenged power to restrict homosexual conduct. The record shows "20 sodomy prosecutions and 4 executions during the colonial period" and numerous records of prosecutions for homosexual sodomy thereafter. To quote Justice White, writing regarding homosexual sodomy laws in the 1986 case of Bowers v. Hardwick:

Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. 5 In 1868, when the Fourteenth Amendment was [478 U.S. 186, 193] ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. 6 In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia [478 U.S. 186, 194] continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

Whether one supports or contests gay marriage is wholly immaterial to how this case should have been decided. As a matter of Constitutional law, the fact that protecting the right of gays to marry was unambiguously outside the original intent of those who drafted and the Bill of Rights and those who drafted the 14th Amendment should have been the alpha and omega of the federal court inquiry. If the Constitution is not held to the meaning of the original drafters, then it is a meaningless document, becoming mere cloth to wrap around whatever social policies an unelected judge wishes to foist upon America as the supreme law of the land. Indeed, it renders a nullity those provisions in the Constitution that specify the sole conditions under which the Constitution can be amended by a majority of the people of the United States. That said - and notwithstanding prior court rulings that comprise existing activist precedent on the issue - gay marriage is not an issue of Constitutional law for the Courts, but rather one of social policy for the people of the fifty states and their state legislatures to decide.

It matters not a wit the evidence that Judge Walker heard at trial, nor his credibility determinations, nor his copious findings of fact - almost all of which are so ridiculously one sided as to read like a polemic drafted by the Gay Activists Alliance. The Court never should have reached the rational basis test. The unvarnished truth is that this is judicial overreach and judicial activism on a scale at least equal to that of Roe v. Wade. And given that this is an issue that deeply divides the nation, the Judge's decision to take the matter out of the hands of America's electorate promises to be equally as destructive.

So how did Judge Walker choose to invalidate the will of the people of California and get around the reality that nothing in the Constitution supports gay marriage? This paragraph from his order provides a good exemplar of his reasoning:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. . . . Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

Let's parse that. ". . . [A]n evolution in the understanding of gender rather than a change in marriage?" That is incoherent. Is he trying to argue that what he is announcing is not a new right? If so, it is an utter canard.

As to the evidence of historical purpose, this judge is deliberately ignoring - and by implication invalidating - the role of religion and the historical treatment of homosexuality as a matter of social policy not merely in our country, but throughout much of the world since the dawn of written history. That is blatant intellectual dishonesty.

As to the "artifact of time," that is simply the Judge's way of tactfully saying that he does not agree with the original intent of the drafters of our Constitution, that he could care less what Californians think as to what the appropriate social policy of their state should be, and that he, by fiat, is choosing to unilaterally amend our Constitution.

At any rate, after several more pages of similarly suspect reasoning coupled with yet more bald pronouncements, Judge Walker concluded that the people of California could not possibly have acted rationally when they decided that marriage should be just between a man and a woman. To put that in perspective, that means the score on whether California acted rationally was 1 unelected federal judge versus 7,001,084 California voters. When one unelected judge trumps the will of seven million plus voters, what does that say about how dysfuntional judicial activists have made our legal system?

This is judicial activism run amok. This man is a judge charged with interpreting the Constitution. He is not imbued with the power to amend our Constitution per his whim. At a minimum, this judge should be impeached and removed from the bench. Tarring and feathering is optional thereafter, though highly recommended as an object lesson for the rest of our judicial activists occupying the bench.

Update: I do not address in this post whether the Judge, being himself gay, should have recused himself from this case. That said, it has been clear from day one of this trial that the judge was wholly biased in favor of the gay plaintiffs. As summarised by Ed Whelan:

Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Walker’s actions, taken together, have only one sensible explanation: that Walker has been hellbent from the outset to use the case to advance the cause of same-sex marriage.

Go to the link for the specifics. If the defendants in the case do not figure out how to raise that issue on appeal, they are foolish indeed.

Update: Chris Wallace interviewed Ted Olson on Fox News Sunday this morning. Olson is the attorney for the plaintiffs in the Perry case. Wallace was clearly unprepared to argue the matter with Olson. You can see the entire interview here. Olson and Wallace had the following exchanges:

"Where is the right to same-sex marriage in the Constitution?" asked Wallace.

"Where is the right to interracial marriage in the Constitution, Chris?" replied Olson.

"The Supreme Court has looked at marriage and has said that the right to marry is a fundamental right for all citizens. So you call it interracial marriage and then you could prohibit it, no? The Supreme Court said no. The same thing here," explained Olson

Unfortunately, that response stymied Wallace. It was a disingenuous example. The entire legislative history of the 14th Amendment, passed by Congress in the immediate aftermath of the Civil War, establishes that the drafters intended by that amendment that blacks and whites should be treated with complete equality and without regard to skin color. If they are equal, then it is completely in keeping with the intent of the drafters that intermarriage be allowed. Conversely, to dissallow interracial marriage would be discrimination based on skin color. The fact that it would discriminate equally against both whites and blacks does nothing to solve the fatal fact that it is discrimination based on skin color - a clear violation of the original intent of the drafters of the 14th Amendment. That is, as I pointed out above, the polar opposite of the situation with gay marriage.

(Update to the Update: At Legal Insurrection, Prof. William Jacobson also points out another obvious flaw in Olson's argument - that every case upon which the Supreme Court found that marriage is "fundamental relationship" involved traditional marriage between a man and a woman, as opposed to any sort of other marriage - i.e., polygymous, etc.)

Wallace then asked Olson how he defined "judicial activism." Wallace helpfully joined in with the asinine quip that it means that a judge has issued a ruling that you don't like. Olson then chimed in:

"The judge after hearing three weeks of testimony and full day of closing arguments and listening to experts from all over the world concluded that the denial of the right to marry to these individuals in California hurt them and did not advance the cause of opposite sex marriage," Olson continued.

"This is what judges are expected to do. It's not judicial activism. It's judicial responsibility in the classic sense."

What utter horse manure. This judge, at the urging of Olson, unilaterally amended our Constitution. To call that anything other than judicial activism "in the classic sense" is pure prevarication.

And finally, Olson finished the interview by calling gay marriage a "conservative value." What a supremely arrogant ass. Is Olson so full of himself that he now sees fit to define what all conservatives should think? I dare say that millions of conservatives don't like Olson declaring what their values are, nor having gay marriage jammed down their throat by a judiciary that is making of social policy whatever they want it to be as a matter of Constitutional law. Indeed, every American should be spitting blood over this.

Prior to this case, I was fairly neutral on gay marriage and quite willing to accept it should it have been subject to a state wide referendum. Not so today. The unbelievable arrogance of our Courts and the misuse of our legal system by the left to work fundamental changes to our society that they cannot get through the ballot box has gone too far by leaps and bounds. And the fact that this was done not on the basis of polls but rather a full election wherein seven million plus Californians voted to amend their Constitution makes this an outrage that dwarfs even the Roe v. Wade decision. If this stands, then we are no longer citizens of a United States governed voluntarily within the framework of a Constitutional covenant, but rather subjects ruled by the police power of a government every bit as imperious as the one we got rid of over two centuries ago.

Update: This issue has spawned many opinions. Here are links to some of them:

Anchoress: Not surprised. The judge's ruling makes sense "if one is peering through the narrowed prism of stringently secular law, and reducing marriage to a sort of contractual partnering."

Gay Patriot - A sloppy legal decision that may well "further divide the nation on gay marriage and embolden social conservatives." (Good legal analysis)

Powerline - "Conservatives have long said that the day would come when liberal judges declare the Constitution unconstitutional. That happened today, . . ."

Newt Gingrich - "Judge Walker's ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife."

Another Black Conservative - Gay marriage will ultimately be accepted by society. This attempt to push it down our throats today may well backfire for gay rights activists.

Left Coast Rebel - Why should I care?

Outside The Beltway - The Judge made the right decision.

DaTechGuy's Blog - "Once again a court discovers new obligations that never existed before…"

Sweetness & Light - "The will of the people as expressed by the votes be damned. We are now a nation ruled by black robed clerics."

Vox Popoli - "at the end of the day, it's little more than one more check in the societal collapse column."

Don Surber - "Once again, the people of the United States are viewed as ignorant bigots by a disdainful court of lifetime-appointed political hacks."

Ace of Spades - "Judge Walker -- Thanks for the extra 7% turnout in November!!!"

Barking Moonbat EWS - "Take this judge out and hang him before he allows transgendered bestiality and grants sheep and goats equal rights."

Joshuapundit - "From a political standpoint, this is yet another disaster for the Democrats, as there is very little actual voter support for same sex marriage, even in a Blue state like California."

Snapped Shot - "This is just another slap at the Christain religion that does nothing but discriminate against us and this nation."

Sister Toldja - Against gay marriage

The Foundry - "an example of extreme judicial activism."

Excitable Andy Sullivan - "The compelling logic of the case reaches what can only be called an apotheosis."

The Other McCain - "These silly Conservatives need to refrain from restraining the Progressive Golden Age right now!"

Rhymes With Right - This "ought to make your blood boil."

The Colossus of Rhodey - Based on the judges reasoning, "what is to prevent some judge from claiming "The number involved in a relationship no longer forms an essential part of marriage"? Or some other manifestion thereof?"

The Volokh Conspiracy - This is 'maximalist' decision that invites a sweeping reversal that could well set back the gay rights movement.

Hot Air - So, Justice Kennedy, what is your decision?

Stop The ACLU - "Being openly homosexual, Walker would have recused himself had he any respect for the proper role of the judiciary. But under a regime of liberals, the judiciary has a new role: to ram through obscenities so monstrous that not even Nasty Pelousy’s Congress could pass them."

NRO - "From his decision to have a “trial” of the “facts” in the case rather than proceed straightaway to legal arguments about the constitutional issues (a choice that surprised even the plaintiffs’ attorneys) to his attempt to stage a nationally televised extravaganza (brought to a halt by the Supreme Court) to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings (ably summarized by NRO’s Ed Whelan here), Judge Walker has been preparing us for a baldfaced usurpation of political power for quite a while."

Legal Insurrection - "There is a certain lack of reality to Judge Walker's fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society."

Dean's World - "In our system of government, policy questions belong to legislators and voters, and judges are supposed to be limited to legal questions. Based on what I’ve read so far of today’s ruling, Judge Walker . . . appears to be ruling that Prop 8 is unconstitutional because he disagrees with the correctness of the state’s reasons for thinking Prop 8 was a good idea. I disagree with those reasons, too, but it appears the court is trespassing on turf rightly reserved for the democratic process."

Bluegrass Pundit - "Some things, such as new technology, may not have been envisioned by our founding fathers and could need interpretation by the courts. Gay marriage isn't one of them."

John Fund at WSJ - Based on Justice Kennedy's activist decisions in Romer and in Lawrence, it is likely he will be the deciding vote to uphold the district Court decision. And while Kennedy has long been a swing vote, he seems to embrace activism on numerous social issues.

Instapundit - has a roll-up

(H/T Instapundit & Memorandum)

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Judicial Activism & The Next Supreme Court

The activist wing of the Supreme Court, that wing associated with the "living Constitution" theory and internationalism, has shown their true colors. The case of Kennedy v. Louisiana was a decision by the five activists on the Court holding that capital punishment could not be constitutionally imposed for child rape. Faced with evidence that the legal justification underlying their policy decision was demonstrably wrong, the activists have refused to revisit their decision. This is proof that they are legislating their policy preferences from the bench and only thereafter attempting to justify their decision with a bare patina of legal reasoning.
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I have posted previously on judicial activism and the fundamental danger it presents to our country. The term "judicial activism" refers to unelected judges who disregard the intent of the founders, twist precedent and ignore the limited powers of the court to make law of their own policy preferences. Three years ago, activists extinguished our 5th Amendment protection against government taking our private property and transferring it to another private party. A few months ago, activists crafted a vast expanion of Court powers to oversee decisions of national security and war. We have seen activists come within one vote of gutting the Second Amendment. And those are only a few of the activist decisions over the past few years. None of those decisions could be justified on original intent of the founders, nor could they be justified on precedent. Instead, these were policy decisions founded on faulty reasoning, twisting of precedent, and, under the relatively recent activist theory of internationalism, cherry-picking of precedent and laws from foreign jurisdictions.

If more proof of that were needed, it could not be clearer than in the case of Kennedy v. Louisiana, the recent Supreme Court case holding capital punishment for child rapists unconstitutional. I critiqued in a post here the legal reasoning of the activist wing of the Court in Kennedy. The foundation of the Court's reasoning was:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The [8th] Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."

The activists then cast about for cases and facts that would support their policy preference. They held that a "consensus" existed at law that capital punishment should not be imposed on child rapists. Shortly after the Court announced the decision, a gaping hole in the activists' reasoning was brought to their attention. Congress had passed a law in 2006 applying to the military that allowed execution for child rape.

That law directly undercut the reasoning by which the activists on the Court reached their decision. If the activists were really engaged in anything other than announcing their policy preferences as Constitutional law, then they would have reopened the case and decided it anew. Instead, today, the five activisits on the Court who formed the majority in Kennedy voted to deny a rehearing. This was the reaction from Justice Scalia:

"The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death. . . . Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"

If you like judicial activism, you'll love a President Obama. Given his opposition to both Judges Alito and Roberts as well as his devotion to radical philosophy, you could expect him to nominate judges who would rip Constituional law from its Constitutional moorings and move it into a whole new direction. It would be activism on steroids. This is a post from a few weeks ago by Power Line, speculating on likely Supreme Court nominees by a President Obama:

Over at Bench Memos, our friend Ed Whelan has started a series in which he considers some of the individuals who have been mentioned as prospective nominees to the Surpeme Court, should Barack Obama be elected. Ed begins with Harold Koh, dean of Yale law school.

Koh is a self-described "judicial transnationalist." Here is how Koh explains this philosophy:

[The transnationalist] tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest to the “mutual interests of all nations in a smoothly functioning international legal regime” and must “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.”

Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law. The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law. The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system.

Ed notes that, true to his transnationalist philosophy, Koh filed an amicus brief in Lawrence v. Texas arguing that international and foreign court decisions compelled the Supreme Court to strike down Texas’s ban on homosexual sodomy. And he submitted an amicus brief (to the Connecticut supreme court) arguing that comparative precedents from foreign countries require recognition of a constitutional right to same-sex marriage.

Read the entire post. Actually, of all the damage a President Obama could do to our country, it is in the choices he will make regarding Supreme Court nominees that he could do the most fundamental mischief.

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McCain On The Judiciary, Kelo, & Originalism

The greatest internal threat to our country lies in the third pillar of our government, the courts, where judicial activism to advance liberal social policies occurs daily and where Supreme Court justices positing the canard of the "living contstitution" feel free to dispense with the democratic methods written into the Constitution to make changes to our founding document and, instead, simply make the changes they want according to their own whim. It is the primary vehicle the far left has used to attack the very fabric of our society since the time of FDR. John McCain, speaking in NC alongside Fred Thompson, Ted Olson and Sam Brownback, laid out his bill of particulars condemning judicial activism and promising to appoint "strict constructionists."

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Given the ages of several members of the Supreme Court - John Paul Stevens, 88, Ruth Bader Ginsburg, 75, Antonin Scalia, 72, Anthony Kennedy, 71 - it is quite likely that the next president will make multiple appointments to the Supreme Court. Those appointment will determine its bent as either an activist or originalist court for decades to come - and to understand the ramifications of such a situation, see Justice Scalia's discussion on originalism here. Indeed, besides national security, the power to nominate Supreme Court justices will be the most important function of our next president. With that in mind, this from the Washington Times:

The presumptive Republican presidential candidate said America's courts have strayed far from the edict of the Founding Fathers, who laid out "not just guidelines," but clear directives for the judiciary.

. . . Mr. McCain spoke in Wait Chapel at Wake Forest University, alongside former Solicitor General Ted Olsen, abortion foe Sen. Sam Brownback, North Carolina Sen. Richard Burr and former Tennessee Sen. Fred Thompson — who dropped out of the GOP race and today made his first appearance with Mr. McCain.

The Arizona senator, who has made no bones about courting independent swing voters and moderate Democrats, ticked off several Supreme Court cases, including the case of Susette Kelo.

"Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way," he said. "And this power play actually got the constitutional 'thumbs-up' from five members of the Supreme Court."

He ridiculed the case of the California man who filed a suit against the entire U.S. States Congress — "which I guess made me a defendant, too — to remove the words "Under God" in the Pledge of Allegiance.

"The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were — and I quote — 'impermissible.' ….

"I have a feeling this fellow will get wind of my remarks today — and we're all in for trouble when he hears that we met in a chapel," Mr. McCain said, drawing laughter.

The senator said some controversial court decisions fall under the rubric of "judicial activism," and indicate that the balance of power designed by the Founding Fathers is out of whack.

"Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game," he said.

The move away from the strict interpretation of the Constitution has doubled back on Congress, where contentious confirmation hearings for judicial nominees is now the norm.

"We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers," he said. "No tactic of abuse or delay is out of bounds, until the nominee is declared 'in trouble' and the spouse is in tears," Mr. McCain said, referring to the latest Supreme Court appointee Samuel Alito, whose wife broke down during the congressional hearing.

But the breakdown stretches much farther, the senator said.

"Presidential nominees to the lower courts are now lucky if they get a hearing at all. … At this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina," he said, noting that a third of the Fourth Circuit seats are vacant.

"But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy," he said.

Mr. McCain pointed out his role in the so-called "Gang of 14," a bipartisan group of senators that "got together and agreed we would not filibuster unless there were 'extraordinary circumstances.'

"This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices [John] Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger," he said.

Mr. McCain took aim at his Democratic opponents, criticizing them for their opposition of Chief Justice Roberts. He lambasted Sen. Barack Obama for his opposition, citing the Illinois senator's words that a Supreme Court justice "should share 'one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.' "

"These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law," Mr. McCain said.

"Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other."

He noted that when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, "I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise."

Mr. McCain said he would give great care to the nomination of judges, and pledged to restore the core beliefs of the judicial system.

"My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice," he said.

Read the entire article.

To underscore just how dangerous judicial activism is to our country, one need only look to the first decision mentioned by McCain, the Kelo decision. If you are not familiary with the Kelo decision, you can read about it here. A group of five activist Supreme Court judges rewrote the plain language of the 5th Amendment in possibly the worst Supreme Court decision of the past century. The effect was to take away the limits on government at all levels to allow them to take private property upon a minimum of pretext and give it to commercial interests. It is both an invitation to corruption and a decision whose effects are being felt very much by the poor and by minorities. This from a recent article in the Orlando Sentinel:

Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 million to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban-renewal takings since World War II.

The fact is that eminent-domain abuse is a crucial constitutional-rights issue. . . .

Current eminent-domain horror stories in the South and elsewhere are not hard to find. At this writing, for example, the city of Clarksville, Tenn., is giving itself authority to seize more than 1,000 homes, businesses and churches and then resell much of the land to developers. Many who reside there are black, live on fixed incomes, and own well-maintained Victorian homes. At a City Council meeting earlier this month that overflowed with protesters from the neighborhood, local resident Virginia Hatcher charged that that the threat of forcing "people from their homesteads of many years" through "underhanded political manipulation" was not only "un-Christian" but had created a climate of fear.

Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn't notice until the U.S. Supreme Court's 2005 ruling in Kelo v. City of New London. In Kelo, the court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of "economic development." The Fifth Amendment requires that such seizures be for a "public use," but that requirement can be satisfied, the court ruled, by virtually any claim of some sort of public benefit. Many charge that Kelo gives governments a blank check to redistribute land from the poor and middle class to the wealthy.

Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that "[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged." Unfettered eminent-domain authority, the NAACP concluded, is a "license for government to coerce individuals on behalf of society's strongest interests."

. . . Four years ago, the city of Alabaster, Ala., used "blight" as a pretext to take 400 acres of rural property, much of it owned by low-income blacks, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than 15 miles away. Several of the land owners, particularly those who lacked political clout and legal aid, ended up selling out at a discount. . . .

Read the entire article.

(H/T Instapundit)

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Supreme Court Justice Scalia

The CBS show 60 Minutes recently interviewed Supreme Court Justice Antonin Scalia. He spoke on a wide range of topics, including originalism, abortion as a Constitutional right, and the Supreme Court decision in Gore.
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This was actually a very good interview, though the interviewer did not know enough about the law to get to the very bottom of Scalia’s philosophy on originalism. Nor did the author touch on the recent move by the far left of the Court to base their U.S. Constitutional decisions on foreign law, nor the far left decision in Kelo, essentially gutting the Fifth Amendment. That said, the interview gives a humanizing look at Justice Scalia as well as at least a taste of his judicial philosophy on issues that go to the heart of the nation America was and may become.

At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.

Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.

Asked what's wrong with the living Constitution, Scalia tells Stahl, "What's wrong with it is, it's wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution."

"It is an enduring Constitution that I want to defend," he says.

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

"As opposed to what people today think it means," Stahl asks.

"As opposed to what people today would like," Scalia says.

"But you do admit that values change? We do adapt. We move," Stahl asks.

"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.

. . . "I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.

"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.

Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."

But his critics argue that originalism is a cover for what they see as Scalia's real intention: to turn back some pivotal court decisions of the 1960s and 70s.

. . . He's been labeled a "counterrevolutionary."

"A counterrevolutionary!" Scalia reacts. "Sounds exciting."

The critics say his aim is to undo Roe v. Wade and affirmative action, and to allow more religion in public life.

"The public sense of you is that [you] make your decisions based on your social beliefs," Stahl says, with Scalia shaking his head. "That is the perception."

"I'm a law-and-order guy. I mean, I confess I'm a social conservative, but it does not affect my views on cases," Scalia says. "On the abortion thing for example, if indeed I were, you know, trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion."

Scalia says he's against that.

"It's just not in the Constitution," Stahl asks.

"There's nothing there," he says. "They did not write about that."

His philosophy has occasionally led him to decisions he deplores, like his upholding the constitutionality of flag burning, as he told a group of students in Missouri.

"If it was up to me, I would have thrown this bearded, sandal-wearing flag burner into jail, but it was not up to me," Scalia told the students.

To Scalia, flag burning was protected by the founding fathers in the First Amendment, which is his only criterion, he says, under originalism.

"But do you respect that there is another way to look at this?" Stahl asks.

"You know the story of the Baptist preacher who was asked if he believed in total-immersion baptism? And he said, 'Believe in it? Why I've seen it done!' I have to say the same thing about your question. There must be other views because I've seen them," Scalia says.

"Yeah, but do you respect them? You don't, do you?" Stahl asks.

"I respect the people who have them, but I think those views are just flat out wrong," Scalia says.

He's talking about some of his fellow justices, like Ruth Bader Ginsburg, a liberal who is - and this never ceases to surprise people - one of Scalia's best friends, both on and off the court.

To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.

. . . Of all the cases that have come before him on the court, Bush v. Gore may have been the most controversial. It has been reported that he played a pivotal role in urging the other justices to end the Florida recount, thereby handing the 2000 election to George Bush. The subject came up at the Oxford Union.

"Supposing yourself as a Supreme Court justice were granted the power to appoint the next president of the United States. Who would you pick and why? And would he or she be better than your last choice?" a student asked Scalia.

"You wanna talk about Bush versus Gore. I perceive that," he replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"

"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.

"I say nonsense," Scalia says.

Was it political?

"Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.

Moreover, he says it was not the court that made this a judicial question.

"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.

"It ended up being a political decision" Stahl points out.

"Well you say that. I don't say that," Scalia replies.

"You don’t think it handed the election to George Bush?" Stahl asks.

"Well how does that make it a political decision?" Scalia asks.

"It decided the election," Stahl says.

"If that’s all you mean by it, yes," Scalia says.

"That’s all I mean by it," Stahl says.

"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.

The justice has been explaining his positions publicly more and more, and even delving into some thorny issues, like torture.

"I don't like torture," Scalia says. "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.

"Anyway, that’s my view," Scalia says. "And it happens to be correct."

. . . "What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks.

"It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

. . . His new book, "Making Your Case, The Art Of Persuading Judges," is surprisingly breezy in that it’s a primer for lawyers on how to win cases. His co-author is Bryan Garner, an expert on legal writing.

"You say things in it like, ‘Be prepared. Look the judge in the eye.’ You almost make it sound like lawyers are imbeciles," Stahl says.

"You would be surprised," Scalia replies, laughing.

. . . "You’ve apparently had some down times in your tenure on the court so far. And I’m pointing to the term of 1995-96 when you wrote to former Justice Blackmun at the time, and here's what you said: 'I am more discouraged than I have been at the end of any of my previous nine terms.' You also wrote that you were beginning to repeat yourself, and you did not see much 'use in it anymore,'" Stahl remarks.

"Gee, I hadn’t remembered that I’d written it," Scalia says.

"It says, 'I am beginning to repeat myself,'" Stahl says.

"That's true. That is something that gives me some concern. I mean after a while, you know, I’m saying the same things in today’s dissent that I said in a dissent 20 years ago," Scalia explains.

"Around that same time you wrote, 'The court must be living in another world. Day by day, case by case it is busy designing a Constitution for a country I don't recognize,'" Stahl says.

"Yeah. That's how I felt," Scalia says.

"Past?" Stahl asks.

"It’s been less dire in more recent years," Scalia replies.

"In other words, you’ve had down times," Stahl asks.

"Yeah, I think so. I’m happier sometimes than at other times. And the end of a term, I don’t care what term it is, it’s usually a disappointment," Scalia says.

That's because - until recently - he was often on the losing side in cases he cared about most. Over the last several years Scalia has reached outside the court, speaking out publicly about his philosophy, in hopes of influencing the next generation. It’s a role he relishes.

"Little kids come to the court, they’re brought by their teachers. And they recite very proudly what they’ve been taught. I mean, this is how widespread the no-'The Constitution is a living document.' And I have to tell them 'It’s a dead document,'" Scalia told the students at the Oxford Union.

Read the entire article. The issues he raises are of great importance. If you are unfamiliar with Scalia’s judicial philosophy and how they apply, I would strongly recommend to you:

Justice Scalia's 2005 Speech on the Living Constitution

Transcript of the debate between Justices Scalia and Breyer on the issue of using foreign law to determine the meaning of the U.S. Constitution

The Living Constitution, Eminent Domain and Private Property Rights

The Constitution and the Red Herring of Abortion - Gonzalez v. Carhart

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