Posted on 01/09/2006 8:26:54 AM PST by PatrickHenry
If there’s anything to be learned from the intelligent design debate, it’s that branding “activist judges” is the hobby of bitter losers.
For those who care about the fight over evolution in biology classrooms, Christmas came five days early when the Kitzmiller v. Dover Area School District ruling was handed down. In his decision, Judge John E. Jones III ruled that not only is the theory of intelligent design religion poorly dressed in science language, teaching it in class is an outright violation of the First Amendment.
The ruling was a concise and devastating demonstration of how law, precedent and evidence can come together to drive complete nonsense out of the courtroom. But if the aftermath of the event proves anything, it proves that nine times out of 10, if someone accuses a judge of being an “activist,” it is because he disagrees with the ruling and wants to make it clear to like-minded followers that they only lost because the liberals are keeping them down. Gratuitous overuse has, in just a few short years, turned the phrase “judicial activism” from a description of an actual problem in the legal system into a catch-all keyword for any ruling that social conservatives dislike.
During the months between the initial suit and the final decision, a high-powered law firm from Chicago volunteered some of its best to represent the plaintiffs pro bono, defenders of evolution and intelligent design mobilized, and few people really cared other than court watchers, biology nerds and a suspicious number of creationist groups. The trial went well for the plaintiffs: Their witnesses and evidence were presented expertly and professionally, and it never hurts when at least two of the witnesses for the defense are caught perjuring themselves in their depositions. Advocates for teaching actual science in school science classes were fairly confident that Jones was going to rule in their favor.
When it came, the ruling was significant enough to earn a slightly wider audience than the aforementioned court watchers, biology nerds and creationists. What drew interest from newcomers was not the minutiae of the trial, but the scope of Jones’ ruling and the scorn for the Dover School Board’s actions that practically radiated off the pages. He ruled both that intelligent design was a religious idea, and that teaching it in a science class was an unconstitutional establishment of religion by the state. He didn’t stop there, however.
“It is ironic,” he wrote, “that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the intelligent design policy.”
Such harsh language might provoke some sympathy for intelligent design advocates, if they hadn’t immediately demonstrated how much they deserved it by responding — not with scientific arguments for intelligent design or legal precedent to contradict Jones’ ruling — but with ridiculous name-calling. The Discovery Institute, the leading center of ID advocacy, referred to Jones as “an activist judge with delusions of grandeur.” Bill O’Reilly also brought out the “A” word on his show. Richard Land, spokesman for the Southern Baptist Convention’s Ethics and Religious Liberty Commission and noted drama queen, declared him the poster child for “a half-century secularist reign of terror.” The American Family Association, having apparently read a different ruling than the rest of America, insisted that judges were so eager to keep God out of schools that they would throw out even scientific evidence for Him. Funny how so many creationist groups seemed to have missed the memo that intelligent design isn’t supposed to be about God at all.
It was depressingly predictable that the intelligent design crowd would saturate the Internet with cries of judicial activism regardless of the actual legal soundness of the ruling. In only a few years, intellectually lazy political leaders have morphed an honest problem in the judiciary that deserves serious debate into shorthand for social conservatism’s flavor of the week. The phrase has been spread around so much and applied to so many people that it only has meaning within the context of someone’s rant. It is the politico-speak equivalent of “dude.”
Only when one learns that Jones was appointed by George W. Bush and had conservative backers that included the likes of Tom Ridge and Rick Santorum can one appreciate how indiscriminately the term is thrown around. Jones is demonstrably a judicial conservative. In fact, he’s the kind of strict constructionist that social conservatives claim to want on the bench. Their mistake is in assuming that the law and their ideology must necessarily be the same thing.
In the end, no one could defend Jones better than he did himself. He saw the breathless accusations of judicial activism coming a mile away, and refuted them within the text of the ruling. In his conclusion he wrote:
“Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on intelligent design, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop, which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”
Jones knew his name would be dragged through the mud and issued the correct ruling anyway. One can only hope that the utter childishness of the intelligent design response will alienate even more sensible people, and that the phrase “judicial activism” will from now on be used only by those who know what they’re talking about. No bets on the latter.
I don't even know where to begin with this. I think you mean well, but you really are misunderstanding this.
The authors of the 14th Amendment wanted to give Congress the power to protect the privileges & immunities, due process rights, etc. of the people. Of particular interest, of course, were the newly freed slaves.
Without amending the Constitution, Congress would have had no such authority, hence the 14th Amendment. That gave Congress the authority to pass the appropriate legislation. Congress had some latitude, of course, but the legislation had to be germane.
To put it simply, they wanted a permanent Constitutional guarantee of Congress' lawmaking authority in the relevant areas, not of any particular law. Congress could make changes later in the 1966 Civil Rights Act, for instance, provided they were germane to the 14th.
There were indeed other amendments dealing with what we might today call civil rights issues. They dealt with areas outside the scope of the 14th. That's why I said you were incorrect in wanting to interpret the 14th as granting female suffrage. Ditto for black suffrage. The right to vote was not a privilege or immunity of citizenship. So it took additional amending to guarantee black or female suffrage.
Where did I state that Congress could change the 14th by statute, as you allege? I've been very clear that their legislation under the 14th had to be germane to it. But more than one piece of legislation could meet that criterion.
The bottom line is that no one even suggested that Congress should exercise its authority under the 14th by banning prayers in school, or removing crosses from city seals, or any of the things the ACLU and liberal judges have read into the 14th in recent decades. Congress never even considered such legislation, let alone passed it. Did Bingham follow up on the 14th's ratiication by introducing a bill to outlaw school Bible readings? Or requiring science classes to be agnostic? Of course he didn't, because he never dreamed of such a thing, let alone supported it.
Yes, as a matter of fact. Just as they should be able to decide that only rock music can be taught in their schools. When the citizens of the jurisdiction don't like what is being decided, they elect a new school board. A fine example of a democratic republic in action.
And yet you want the 99% of the world who do believe in a Creator God to buy your peculiar mythology that the cell happened by accident, while the clay tablets we pull from the desert and study are considered to be artifacts of intellegent design.
Yeah, that's logical and scientific.
John & Jim are a gay couple. They want to rent an apartment in Dave's building. Dave finds homosexual acts disgsting and refuses to rent to them. John & Jim claim a 9th Amendment right to not be discriminated against for being gay. Dave claims a 9th Amendment right to rent to whomever he chooses.
Who is correct?
Make that 1866, not 1966! :-)
I second the nomination....
How? By agreeing with the 14th Amendment that women qualify as U.S. citizens?
On the other hand, I will concede that at the time the 14th was passed, no one, not even white men, had a constitutional right to vote. And the 14th didn't even grant that right to men - it simply outlined penalties that diminished the states electorate power if men were disenfranchised.
Therefore, I concede the point that the 14th did not grant women the explicit right to vote, but I will stand by the opinion that by virtue of their inclusion as citizens, they should have enjoyed the same implied privileges vested in male citizens.
You see, that's the point. If there is no constitutional right to vote, the Supreme Court has no business creating one, nor any authority to do so. It thus took constitutional amendments to secure black and female suffrage.
One of our biggest problems today is judicial activism, which has given us atrocities such as Roe, and may well lead to gay "marriage" being imposed on us by the courts.
That's what they want you to believe.
I've seen something or other else from Hannah Camp that bothered me a bit. Sort of like having the ACLU on your side. There's nothing wrong with what she wrote here, though.
Who is correct?
First, John and Jim would not have constitutional rights for being gay. They would have constitutional rights for being U.S. citizens. At best they could argue that being gay is the reason for the infringement of a right. Granted, this is mainly just a semantic point, and the upshot still comes out close to what you said.
Second, the positive assertion of one's constitutional rights is tempered by the passive retention of another's.
And third, unless Dave is operating under authority of a government body (such as administering a state-run housing complex), then he is not capable of violating constitutional rights. He could, however, be subject to equal housing ordinances, and that might be a better battlefield for the analogy you are trying to make. But that would likely still result as favorable to Dave - see my second point - resulting in the invalidation of the equal housing law. However, if that law is written in such a way as to grant benefits (e.g. a tax break to those that are in compliance) instead of requiring adherence, then Dave may face a choice between maintaining his rights and obtaining a benefit.
I don't trust them as far as I can spit. As they see fit is the keyword. It means they do whatever they want regardless of rights. What matters most often is not Freedom and rights, but imposition by whim. The Congress, President and the Supreme court have violated the BoRs. I have no reason whatsoever to believe any majority will act to protect rights, only that they act to satisfy what they see fit to. I think the BoRs should be strengthened and violators be exiled.
Fundamentalists have a commendable tolerance of unorthodox belief - as long as the believer is dead.
Remember, Emma Darwiun is now a "devout Christian", an accolade not granted to living Unitarians.
I have no need to address it. I am not an evolutionist. I have no problem with the fact that dogs have been domesticated and have been breeded by men in such a fashion that different lineages result in vastly different appearances and traits, but they are all still dogs. They aren't cats.
I haven't heard many people argue that the first 8 Amendments, from the time they were ratified, bound the states. In fact, Madison, when he drafted the Bill of Rights proposed one that read:
No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases
a proposed amendment that was rejected although Madison belived it to be the most important of his proposed amendments.
It seems hard for Americans today to appreciate how connected Americans were to their states and how fearful they were of the federal government. You see it even in the quotes over the Blaine Amendment in 1875...even then, American politicians still did not want the federal government defining fundamental rights or their scope in their states.
The strange irony of the Bill of Rights is that they were seen by many of the Framers as unnecessary. Even Federalists like Hamilton acknowleged that they were only prohibiting the federal government from doing things it did not have the power to do anyway. In Federalist 84,. Hamilton writes:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
In 1821, Madison described the Bill of Rights as "those safe, if not necessary, and those politic, if not obligatory, amendments."
The concern was to provide some minimal level of protection against the potential for the federal government to one day take enough power that it could violate fundamental rights not protected under state constitutions. The push for the Bill of Rights came mostly from the AntiFederalists (who, in many cases, objected to the whole idea of creating this federal government and would not, in a million years, have acceded to having the new US Constitution dictate how states could govern internally)
The 9th Amendment, works together with the 10th Amendment, and these two amendments were added at the insistence of the Virginia and NC delegations that were concerned that the Bill of Rights might, constructively or by implication, expand the powers of the federal government vis-a-vis the states. This is evident from the writings from the state ratifying conventions, from the writings of Madison himself and particularly from Madison's speech before Congress regarding the chartering of the Bank of the United States...which Madison himself argued was unconstitutional because "latitudinal constructions" (Madison's phrase) of enumerated powers were unconstitutional. Madison speaks throughout his speech about federal usurpation of the "rights of states" to charter banks. Mind you, this speech, which focused on the subject of the 9th Amendment was given while the Virginia delegation was debating the Bill of Rights
In proposing the Bill of Rights, Madison stated in Congress:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
What was the last clause of the 4th Resolution?:
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
It was this clause which ultimately became the 9th and 10th Amendments...it was not individual rights the US Constitution aimed to protect...rather it aimed to create a federal government with emough powers to deal with the issues for which it was created...without giving it so much power that it trampled the rights of the states...individual, natural rights were topics left to the state governments and state constitutions
That's only speculation, an assumption based on guesswork. Noone has ever witnessed a poodle turn into a great dane. Get back to me when you can turn a wolf into a chichuana in a lab.
No, and dogs aren't wolves or coyotes, either, but I don't know anyone who doubts that dogs, wolves and coyotes all shared a common ancestor.
And these folks (who can rarely get a date, who usually have the jitters from too much work and too much coffee, who spend countless hours tromping through fields and swamps and analyzing biological minutia in badly ventilated labs under harsh fluorescent lights for a salary no self-respecting janitor would accept) have as "their eschatology, their vision of heaven on earth--free sex, live forever, no disease, no work?"
Well, these evil schemers simply must be dealt with! You better write a letter to your congressman -- today!
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