The Socialist’s Journal: Activist Judges (Elena Kagen ADORED by the radicals)

The Socialist’s Journal: Activist Judges
July 6, 2010 at 07:00 am
Trevor Brookins

*With the questioning and possible confirmation of proposed Supreme Court Justice Elena Kagen there is the obligatory hand wringing by conservatives over what is assumed to be a liberal leaning mind.

One of the favored arguments against liberal judges is that they are activist – meaning their decisions on cases take into consideration their vision for society as much as, or even more so than, the facts of the case in question.

On its surface such behavior on the part of the judges would seem autocratic and undemocratic. Nevertheless judicial activism is a tradition of behavior almost as old as the country itself and is part of the Constitutional job description of a Supreme Court Justice.

To speak negatively of activist judges as attempting to change society is to scapegoat them unfairly for the inevitable evolution of the country. The Constitution was written by men who had settled and developed an agricultural aristocratic society on the eastern coast of North America which relied heavily on chattel slavery.

The founders of the United States were not anticipating the specifics of movements for citizenship privileges by women or ethnic minorities, westward expansion might be undertaken, or many of the technological advances that have come to define our society. That is to say, to argue against activist judges because their decisions are contrary to the original intent of the Constitution is a moot point. The society that they established and lived in has been forever altered and so contemporary judges must assess cases in today’s context.

The founding fathers of the United States did however outline basic principles that define interactions between individuals, between states, and between individuals and states.

I see -- The Constitution has an invisible label on it that says, "Use Before 1804". Apparently the Lewis & Clark expedition changed the meaning of "freedom", "equality", "rights", and "property".

The author, like the Justices he favors, is engaging in a bit of forensic prestidigitation but much less artfully done than when engaged in by our liberal Justices.

The author tells us that technology changes but what he means is that human nature changes and that is his trick. Human nature does not change; culture changes.

For example, it was the universally accepted law of America that various states had the power to prohibit homosexuals from buggering each other, even in private. The Supreme Court came along after these centuries and declared that homosexuals indeed have the right to bugger each other as long as they did it in private, state laws to the contrary notwithstanding. What changed? Did the technique of buggery change? They do it in different body positions in the late 20th century than they did in 1787? Did the advent of condoms creating constitutional right to bugger? Did technological events in medicine offering cures for syphilis, if not for AIDS, change the constitution? Do the essential nature of gay men and their desire to bugger or be buggered somehow change over the centuries?

I think the author betrays what he means in this paragraph:

The reality is that judges hardly ever take the first step in initiating social or cultural change – Brown vs. the Board of Education was predated by Jackie Robinson by seven years. Activist judges are not activist at all. If anything they are reacting to changes in society and reaching decisions that adhere to the law while reflecting and solidifying changes in society.

So it is not technology, like cell phones or telephones, that the author is talking about at all. Rather, it is a new social context. If the author is correct it reinforces the old observation, I think of Sen. Moynihan, that culture is more important than politics because ultimately culture will dominate politics. But should culture dominate the Constitution? Why do we have a Constitution if not to protect us from cultural tyrants flacking the newest cultural flavor of the week?

It is not enough that these people have an amendment process to impose their cultural values on me now they want unelected, unaccountable judges to do it even when the cultural context has in fact not changed, nor the technology, but only political correctness.

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