The 'Judicial Activism' Ploy (Thomas Sowell)

Creators Syndicate ^ | February 8, 2011 | Thomas Sowell

[jazusamo]

Now that two different federal courts have declared ObamaCare unconstitutional, the administration's answer is to call the courts guilty of "judicial activism." Barack Obama has a rhetorical solution for every problem. Remember the repeated claims of "shovel-ready" projects that needed only federal stimulus money to get started? Last year the President quietly admitted that there were not many "shovel-ready" projects, after all. But the phrase served its political purpose at the time— and that was obviously all that mattered. Now, in the wake of rulings by two different courts that ObamaCare is unconstitutional, rhetoric is being mobilized again, without any fussy worries about facts. "Judicial activism" is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything. In recent years, a brand-new definition of "judicial activism" has been created by the political left, so that they can turn the tables on critics of 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 to, 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. The Tenth Amendment to the Constitution says that the federal government can do only what it has been specifically authorized to do by the Constitution. Everything else is left to the states or to the people themselves. Nevertheless, back in 1942, the Supreme Court said that because the federal government has the right to regulate interstate commerce, the Department of Agriculture could tell a farmer how much wheat he could grow, even if the wheat never left his farm and was consumed there by his family and their farm animals. That case was a landmark, whose implications reached far beyond farming. If the meaning of "interstate commerce" could be stretched and twisted to cover things that never entered any commerce, then "interstate commerce" became just a magic phrase that could make the Tenth Amendment disappear into thin air. For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce. But there was consternation among politicians and the media in 1995, when the Supreme Court said that carrying a gun near a school was not interstate commerce, so that Congress had no power to regulate it— even though states had that power. Howls of protest went up from politicians and the media because the Supreme Court voted 5 to 4 in favor of an ordinary common-sense reading of the Constitution, instead of the clever word games that had been used for so long to circumvent the Tenth Amendment. ObamaCare is another piece of Congressional legislation for which there is no federal authority in the Constitution. But when someone asked Nancy Pelosi where in the Constitution there was any authority for passing such a law, her reply was "Are you kidding?" Two federal courts have now said that they are not kidding. The ultimate question is whether the Supreme Court of the United States will back them up. That may depend on how soon the case reaches the Supreme court. If the issue wends its way slowly up through the Circuit Courts of Appeal, by the time it reaches the Supreme Court, Obama may have put more of his appointees there— and, if so, they will probably rubberstamp anything he does. He would therefore have done a complete end-run around the Constitution and be well on his way to becoming the Hugo Chavez of North America.

[jazusamo]

Dr. Sowell is correct, Obama is on his way to becoming the Hugo Chavez of North America.

[HiTech RedNeck]

Big Eared Hypocrite.

[jazusamo]

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[Gilbo_3]

thanks again jaz...

words mean things, and the verbiage of the press has indeed tipped the scales...its a train wreck in slow motion, as the bad guys fight dirty and disregard any 'rules' [brass knucks, biting, gouging, guns bats etc], while we send in the clowns wearing bow ties and bifocals with looney-tunes sized padded gloves...

ultimately, the 9 MILLION pound gorilla in the room will hafta be the III percent of the population that can play 'dirtier' than satan on his best day...

gonna...get...ugly...

[TheThinker]

Declaring a law unconstitutional isn’t judicial activism even whe wrong. Judicial activism is the act of creating new law rather than ruling on existing law.

[TheThinker]

by the time it reaches the Supreme Court, Obama may have put more of his appointees there— and, if so, they will probably rubberstamp anything he does.

Unless Judge Vinson puts a stay of execution on ObamaCare.

[Publius6961]

Most Americans are ignorant of history and tend to blame tthe wrong groups. Also, Legislatures have pushed the envelope on Constitutionality, and legislative-executive collusion was engraved in stone by that most activist anticonstitutional progressive monster, FDR*.

Today, I believe Barrack Hussein Obama may be out-FDRing FDR.

* Google "packing the Court," and check out these books :

FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy by Burt Solomon (Apr 27, 2010)

and...

Supreme Power: Franklin Roosevelt vs. the Supreme Court by Jeff Shesol (Mar 22, 2010)

[Lancey Howard]

Thomas Sowell is a powerful thinker and writer, and I almost always agree with him 100%. ...But I think he is off base with this one:

In recent years, a brand-new definition of "judicial activism" has been created by the political left, so that they can turn the tables on critics of judicial activism. The new definition of "judicial activism" defines it as declaring laws unconstitutional.

The fact is, the left has for decades used the courts to get laws declared unconstitutional or otherwise overturn them. Some examples are Prop 187 and Prop 8 in California. Nationally, it's not only ballot questions, of course; it is usually laws (and budgets!) that have been passed by state legislatures. Recent history is rife with cases where the left abused the courts, perhaps the most well-known concerning gay "marriage" in Massachusetts and Iowa, and the Torricelli/Lautenberg ruling in New Jersey.

I believe that what the lefties are doing with their hypocritical cries of "judicial activism" nowadays is trying to water the phrase down so that when conservatives rightfully cry foul, the ignorant chattering class will shrug and say, "There go the politicians again."

[rockinqsranch]

Yes, he is very correct.

There’s a movement currently to undermine Clarence Thomas, to try to force him to resign from SCOTUS. They are using dirty tricks as usual targeting him. Ginsburg says she will stay on the court I suppose until they have to carry her away as she wants to be there to vote Left with whoever Obama replaces Thomas with I believe. That is the purpose of the assault on Clarence Thomas is to stack the court with Leftists, and they believe they can force Thomas out.

It’s imperative we all get behind Clarence Thomas, and support him during this assault.

[Just A Nobody]

Love Dr. Sowell ... thanks for the post, jaz.

Sorry to nit pick, but if one is going to quote someone it must be accurate. But when someone asked Nancy Pelosi where in the Constitution there was any authority for passing such a law, her reply was "Are you kidding?"

Actually, her response was: “Are you serious? Are you serious?”

[YankeeReb]

If the issue wends its way slowly up through the Circuit Courts of Appeal, by the time it reaches the Supreme Court, Obama may have put more of his appointees there— and, if so, they will probably rubberstamp anything he does. He would therefore have done a complete end-run around the Constitution and be well on his way to becoming the Hugo Chavez of North America.

That ought to send chills down anyone's spine who believes in limited government. Really he's only one justice away from making that a reality.

[jazusamo]

Hiya, Justa;-)

You’re absolutely right! I picked up on that also and her words should be written in stone and placed in front on the 9th Circus Appeals Court in San Francisco for all to see for years to come. Place it directly under the stone plaque that states SCOTUS declared Obamacare unconstitutional in 2011.

[jazusamo]

Really he's only one justice away from making that a reality.

You're dead on the money and it should scare everyone in our country including libs.

[lentulusgracchus]

legislative-executive collusion was engraved in stone by that most activist anticonstitutional progressive monster, FDR

Amen, brother. No modern historian has yet given FDR his props -- which would consist mostly of backing up a septic-tank truck and dumping it on his grave. Then obliterating it.

Better still, dig the sumbitch up and rebury him in an unmarked hole under a four-lane intersection somewhere.

Then dynamite and bulldoze flat all those memorials the 'Rats have put up to him around DC. There are at least two I know of.

Oh-- and recall all the dimes in circulation and melt them.

[epow]

Obama is on his way to becoming the Hugo Chavez of North America.

On his way??? He's been there done that since the day he took office. Chavez is a Hispanic Marxist and Obama is an Afro-American Marxist, what's the difference?

The 2012 election will answer the most serious question we have faced since Lincoln's time. Will the US return to the Constitutional Republic government that the Constitution's authors' designed, or travel on down the 6-lane turnpike we're on now to an all-out Marxist dictatorship?

[allmendream]

Judicial activism is not when a law is rejected by the Courts.

Judicial activism is when a legislative solution is written by the courts; like with forced school busing.

[lentulusgracchus]

{Art.} Barack Obama has a rhetorical solution for every problem.

Brother Sowell is right, and it sounds like he's also had about enough of Brother Obama. This is a good example of how polite people tell other people that "that n****** talks some ****!" Tell it, Brother Sowell! If Obama wasn't running his mouth, we'd never get any work out of him.

Of course, this is the kind of remark that tends to get honest politicians killed, when people like Obama and the Communists Obama admires get around to the killing, and publicly displaying the bodies of their enemies.

Dr. Sowell is correct, Obama is on his way to becoming the Hugo Chavez of North America.

Yes, just so. All Obama needs is one more Red on the Supreme Court. (Damn those spineless RiNO's for not filibustering Diesel Kagan!)

[jazusamo]

(Damn those spineless RiNO's for not filibustering Diesel Kagan!)

You're absolutely right about that, she is bad news and will be for many years to come.

[Monorprise]

“”(Damn those spineless RiNO’s for not filibustering Diesel Kagan!)”

You’re absolutely right about that, she is bad news and will be for many years to come.”

I’m starting to think we should start a fight with this and begin the process of impeaching Federal injustices who don’t hold literal interpretations of the Constitution.

This of course will result in leftist reprisals when they get in power, starting a fight for dictatorial power. But the fight itself will expose the self-destructive nature of the way the Federal Government judges itself the final judge of it’s own powers.

That in turn will open up the necessity of allowing the States to take over this roll.