Krauthammer Nails It
January 25, 2010 /
Funniest and best point Krauthammer makes is in response to Comrade Obama’s silly sentiment, when he said that Scott Brown was elected “not just because of what’s happened in the last year or two years, but what’s happened over the last eight years.”
Right, says Krauthammer in effect, so let us get this straight: Massachusetts voters are still so ticked at George W. Bush that they elect a Republican senator to Teddy Kennedy’s seat. Priceless.
I’m looking forward to your post on the Supreme Court’s activist ruling the other day. Was this what the framers of the Constitution had in mind? Was this legislating from the Bench? Was this measured and incremental jurisprudence?
With the ruling, does this mean the end of campaign finance reform in America (as John McCain fears)? What, if any, threat is this to our political system?
@Bob Robinson: Though I’m hardly qualified to speak to each of the questions you raise, and wouldn’t pretend to (particularly concerns about the future of “campaign finance reform” and threats to our political system), I will tackle the questions regarding the framers and legislating from the bench. I will only say that we live and judge according to the Constitution, that if we find that Constitution to restrict what we deem to be important progress (i.e., things like campaign finance reform), then there are means to deal with it other than crafting unconstitutional laws.
The answer seems pretty simple to me: “legislating from the bench”, commonly known as “judicial activism”, doesn’t entail overturning law, per se; it entails a going beyond the interpretation of the Constitution to the making of laws based upon the whims of the given justices. Roe v. Wade was judicial activism; it has no place in the Constitution as written, but rather in the imagination of some supposed “right to privacy” which Justice Blackmon found hiding ‘neath his robes, one would suppose. If Roe were, by the grace of God, to be overturned, there would (I should use the word “need”, not “would”, here) be no “judicial activism” in it; there would be merely the Constitutional righting of an unconstitutional wrong, and it doesn’t matter than Roe has been the law of the land for decades any more than it mattered that Dred Scott was long-established. Of course, Roe could be unconstitutionally overturned; if a majority of justices overturned it on the basis of “the harm it does to women” or something like that, we would have judicial activism instead of Constitutional reasoning.
With that in mind, it’s interesting (and candidly, I hadn’t really looked into this much; the article I quote is the first article I’ve read on the subject) that the article I found, from the New York Times, illustrates my point. Justices, 5-4, Reject Corporate Spending Limit contains this phrase: “The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.” That, mi amigo, is what I call a “telling statement”. The majority argued on First Amendment grounds; the dissenters argued on (what they in their “wisdom” consider to be) practical grounds. That, in my judgment, pretty clearly defines the issues: do our laws devolve from the Constitution correctly interpreted and applied, or from what some justice(s) think the Constitution ought to say?
Because the fact of the matter is that there is a way to accomplish what McCain and Feingold, et al, want: it’s called amending the Constitution. Yeah, it’s messy, difficult, and time-consuming–but it’s available to them. What we see, though, with laws like McCain/Feingold is an attempt to circumvent the Constitution, it seems to me, and that’s what the justices found, albeit by the slimmest of margins. But their actions neither constituted “legislating from the bench” nor “judicial activism”.
Finally, to the question of “measured and incremental jurisprudence”, well, I’m not sure where that term comes from; I’ve always considered similar concepts to be wide of the mark anyway. If laws are made that are unconstitutional, and even if some previous Court has found them constitutional (via specious, “judicially activist” reasoning), then I don’t much care how fast those wrong laws are dismantled. Slavery wasn’t piecemeal dismantled; the laws of the several states prohibiting abortion weren’t gradually relaxed. Momentous actions have often been taken in one fell swoop, by both the legislative and judicial branches. “Measured and incremental” may have its place, but it isn’t necessary.
I am now doing my research on the subject, so my conclusions are not yet set. And thus, I wanted your input, since your one of those who advocate a strict constructionist view of constitutional law. What is your take on how the court decided in 1886 that the 14th Ammendment (which was written to give slaves and their descendants citizenship rights) applies to corporations? Is this not judicial activism? Practically, it can be said that this ruling “corrupted democracy,” but more importantly, constitutionally speaking, was that amendment written to give corporation human rights?
@Bob Robinson: Sorry, Bob, I’d have to do some research on that one; I just don’t really know a lot about it. As usual, I can sound like I know more about something than I actually do! Seriously, I am a strong believer in the principle–and on this one, I honestly think, as I’ve argued before, that there’s clearly a right and a wrong way to look at the Constitution, just as there’s a right and a wrong way to look at the Bible, or even to read a text. When a law is passed; when a text is written, the original intent of the writer/drafter ought to guide the interpretation of that text. That’s constructionism in a nutshell: what did the legislators intend to legislate when they passed the bill in question? Any other understanding (well, there are variations on constuctionism, such as originalism and textualism, but they are variations on a theme) and you’ve got chaos; the law becomes whatever 5 people think it ought to be, their fertile imaginations the arbiters.
And thus a quick answer is that, as Bork points out in one of his books, courts have been planting the seeds of judicial activism all the way back as far as the time of John Marshall. So without having much knowledge of the 14th Amendment, it’s entirely possible that judicial activism was at play then, BUT the fact that the constructionist faction of the current Court unanimously voted as they did suggests to me otherwise. If I get a chance, I’ll do a little research, though…
Krauthammer always nails it. He’s as intelligent as I am good-looking. Hmmph, now my wife is laughing hysterically…