Friday, December 23, 2005
Judicial activism, part one
Part One: What they do
Let's do a thought experiment. Imagine the First Amendment to the U.S. Constitution was just a little different:
Congress shall not paint stars on its bellies.
Now to you and me, the meaning is pretty plain. There are no fuzzy points, no areas of contention.
What if somebody gets tricky and asks about taxi drivers? Our imaginary amendment says nothing about them. Maybe another law somewhere says taxi drivers shall not wear stars on Thursdays. Maybe not. The point is: it is not about taxi drivers or Thursdays. It controls Congress.
Now if you were a U.S. federal judge, it is just as plain. The Constitution exists to Protect People From Tyranny and Oppression. No matter which rock Evil tries to hide under, it will be found and smashed.
So in this case, our fearless judges would discover that Americans have a natural right not to see star-bellied Congressmen. The Founding Fathers would not have mentioned it at all if there wasn't a universal right that needed protecting. All the circuit judges reading this nod their heads at this point.
And at this point, a justice of the Supreme Court would whip out his great, shining Chainsaw of Generalization. For the right cannot be limited to only Congressmen. What's the point, if the town council and postmen can go about with nasty stars? To really have teeth, the right has to eliminate all government starifying. Only then can people gaze freely on the starless public spaces, in this great free land between the two seas.
For the star would be a symbol of oppression and control, a tool of fundamentalist oppressors. If the mayor put a big star on the town square, he might as well have sent a starry Senator Kennedy to belly dance in your living room—it's just that horrible.
So the people have to be protected by any means necessary. A noble defense lawyer can find something star-shaped, help someone learn how offended they are by it, pay their court filing fees for them, and presto! a federal court will protect their rights. Rights they may not have even known they had, until an officer of the court helped the victim discover them.
Of course, the First Amendment really says
Congress shall make no law respecting an establishment of religion.
Now once again, the meaning is pretty clear to you and me. Unfortunately, once again it is also clear to our glorious federal defenders: all governments everywhere must be completely cleansed of every trace of religious contamination. Slapping a cross on the city seal causes such injury to someone (exactly what injury is never mentioned) that it must be remediated.
Just like when you hear someone say, "I'm not prejudiced, but," you know you will hear a racist accusation.
When is part II coming?