Posted on 07/23/2005 4:53:33 PM PDT by CHARLITE
Those who want to see judges who will apply the law instead of imposing their own policies face not only political obstruction to the appointment of such judges but also calculated confusion about the very words used in discussing what is at issue.
Judges who impose their own preferences, instead of following the law as it is written, have long been known as "judicial activists" while those who carry out the law, instead of rewriting it to suit themselves, have been said to be following the "original intent" of the law.
But now a massive effort to muddy the waters has been launched by those who want judges who will continue to impose the liberal agenda from the bench. Words like "activists" and "intent" are being twisted beyond recognition.
Senator Patrick Leahy has redefined "activist" judges to make the least activist Justices on the Supreme Court -- Antonin Scalia and Clarence Thomas -- suddenly activists by his new definition.
Senator Leahy has said: "The two most activist judges we have right now are Justice Thomas and Justice Scalia, who have struck down and thus written laws of their own in place of congressional laws more than anybody else on the current Supreme Court."
One of the major functions of the Supreme Court for more than two centuries has been to strike down acts of Congress, the President, or the lower courts when any of these exceed the authority granted to them by the Constitution. Calling this "judicial activism" is playing games with words and befogging the real issues.
When Justices Scalia and Thomas enforce the limits set by the Constitution, that is not writing "their own new laws," no matter what Senator Leahy claims.
Those who are writing their own new laws are people like Justice John Paul Stevens, who arbitrarily expanded the Constitution's authorization of government taking of private property for "public use" to allow the taking of private property for a "public purpose" -- which can be anything under the sun.
It is one thing to allow the government to take land needed to build a military base or a dam and something very different to allow the government to bulldoze people's homes to turn the land over to a private developer to build casinos or shopping malls.
Liberal law professors have joined in the redefining of words. One has given a numerical meaning to "judicial activism" by counting how many laws particular Justices have declared unconstitutional. As Mark Twain said, there are three kinds of lies -- lies, damned lies, and statistics.
Another law professor, Stanley Fish of Florida International University, likewise befogs the obvious with elegant nonsense.
Those who try to follow the "original intent" of the Constitution cannot do so, according to Professor Fish, because "the author's intent" cannot be discerned, "so the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention."
Clever, but no cigar.
While the phrase "original intent" has been used as a loose label for the philosophy of judges who believe in sticking to the law as it is written, judges with this philosophy have been very explicit, for more than a century, that they did not -- repeat, not -- mean getting inside the heads of those who wrote the constitution.
Justice Oliver Wendell Holmes said it in plain English, that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."
Such contemporary followers of Holmes as Judge Robert Bork have said the same thing in different words. More important, nobody ever voted on what was in the back of someone else's mind. They voted on the plain meaning of obvious words.
There is no confusion between the government's taking land for its own use and seizing land to turn it over to somebody else. The only confusion is the calculated confusion of the partisans of judicial activists.
Dr. Sowell is a senior fellow at the Hoover Institution.
How do you see his words, if I may ask?
Race can be mentioned so long as anyone is permitted to question why. Which I did.
I'm not a Negro but, if I were, I wouldn't capitalize the word. Why do you?
My guess is that you are a youngster who was weaned too early and needs a little more time in mommy's arms.
My guess is that you can't take anyone disagreeing with you. I'm 70.
Senator Leahy is a joke. I believe he has Alzheimers, but will not leave office except in a pine box feet first.
If I were Roberts, I would be struggling to NOT laugh in some of these guys' faces, especially someone like Leahy.
He has no clothes and deserves minimal respect, only as an office holder, not as a gentleman (because he is not one) and not for an intellect (because he has none).
He is the same as Kennedy, a liberal socialist Democrat HangerOn.
I always include the photo of an author of a piece, if it is available on the original, or if I've posted something by the same author previously and have retained the photo, as I had in this case.
Char
Char...you are the person.
Your work is commendable, and I enjoy your thoughts and perspectives!
I'm so glad that you said that! This is where Madame Wannabe Queen of the World is going to get the pants suit debated off of her, if we Republicans pick exactly the right candidate in 2008. Our candidate will prove, in the debates and out on the stump, that Madame Kleentoon is NOT "the smartest woman in the world," nor even close.
She and her husband are past masters at "using confusing language to win on issues they would otherwise lose." The 2008 campaign should finally expose her for what she is - an obfuscator of the worst, most transparent sort.
Char (:
Bwhahahahahaha!!! what an absolute nut bag!!! The worst part is that they'll be whole new breed of stupidity generated by the left to regurgitate this poo.
Does everybody remember the joke from back in 1992 about Mrs. Clinton being on a airplane going down with the Pope, a Boy Scout and a third person....and only three parachutes?
The Pope jumps, then Clinton jumps after saying she should survive because she is the smartest person in the world...and the boy scout turns to the third and says:
The smartest woman in the world just jumped out with my backpack!
Ditto. See post number 26!
Why do you say "past" masters?
I suggest you two take this line of disagreement off line before one of you embarrasses yourself.
Double standard. Double standard. Double standard.
Oh! Did I say liberal socialist Democrats work on a double standard?
It is called a one way rachet in their minds.
Congratulations, you have regressed back to eleven or there abouts. Happy second childhood.
I didn't recognize that you were disagreeing with me. You seemed instead to be super sensitive to the mention of race. I think that is the result of political correctness gone awry and has become bullying and intimidation.
I am not disagreeing with you I am simply judging you. Yeah, I know we shouldn't do that but we do whether we admit it or not. I am happy to admit taking a stand rather than being a mellow middle mushy. I am not calling you that so no need to defend yourself.
I am 67 so I haven't regressed as far as you. :-)
If they have a brain trust at all. They are still living off the brain trust that was behind FDR in the 1930s/1940s.
Who would you say currently exhibits what one would call a brain trust among Dem Senators?
House reps?
It is all lockstep right off the cliff it seems.
Walter Williams is not a conservative by any stretch based on my reading, listening on Rush, etc.
Where would you place him?
1--Liberal
5-Moderate
10-Conservative
It's hard to say, because I've only heard him a few times when he was sitting in for Rush. Definitely not a liberal though, as far as I could tell.
I vaguely recall him saying something about not belonging to either of the two major parties, though I'm not sure what that's about. One can definitely be a conservative without being a GOPer.
What exactly gives you the impression that he is not a conservative?
Where would you put him, moderate or liberal?
It was an elegant way to say, "we must have been seperated at birth".
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