What is "Judicial Activism"?

As you knew she would, Ann Coulter weighs in on President Obama's intemperate remarks from the other day about the proper duties of that "unelected group of people" otherwise known as the Supreme Court.

Among the President's more egregious misunderstandings, or mischaracterizations, was the one he made about the meaning of judicial activism, long a conservative complaint about rulings coming from liberal justices on the Court.  Here Coulter offers as good a short-hand definition of it as any:

Decisions not plausibly based on anything in the Constitution.

Of course, she wouldn't be herself if she didn't also take a shot:

Curiously, the only court opinions liberals really get excited about are the ones having nothing to do with the Constitution: abortion, nude dancing, gay marriage, pornography, coddling criminals, etc., etc.

Freedom vs. Equality...again

Victor Davis Hanson argues that our coming election will be useful in its clarity at least.  As he sees it, all the issues boil down to "Freedom or Fairness in 2012?".   He sums it up with this:

These are the ancient arguments that have pitted the liberty of the American Revolution against the egalitarianism of the French, the statist visions of John Maynard Keynes against the individualism of Friedrich Hayek, and the tragic admission that we cannot be truly free if we are all forced to end up roughly equal against the idealism that if we are all roughly equal then we are at last truly free.

In blunter terms, Romney’s message is that, if you have the money to drive a nice Kia, what do you care if a sleek Mercedes whizzes by? Obama’s answer, in contrast, is that you should care, because the guy in the Mercedes probably took something from you. 

The election will hinge upon how many people who can’t now afford a Kia believe that they might be able to under Romney — and upon how many couldn’t care less about the guy in the Mercedes.

Regrettably, most people who even recognize the tension between the pursuit of liberty and the pursuit of equality/"fairness", reduce it, like Hanson does here, to material terms, to differences in economic visions.  While it is that, it is also more, much more than just that.

It is also very much about the formerly privileged position accorded traditional marriage and family versus the equality-inspired radical feminist and militant homosexual rights agenda.  As well as, I must add, everything that touches that debate, to include the repeal of Don't Ask-Don't Tell, for example.  Therefore, it is also about the kind of military we will have.

It is about the kind, not simply the cost, of the health care you will receive.  As we have already witnessed, it is about religious liberty and freedom of conscience when the kind of care you receive at a Catholic hospital, for example, differs from the kind that the state sanctions.

It is about the locus of political authority, nearby or far away, as states currently cannot build roads and individual land owners cannot build homes without first obtaining permission from the federal government and its bureaucracies.

It is also about, maybe even especially about, whether this country is indeed exceptional or simply one of many more or less similar (equal?) governing units currently scattered across the globe.

This fall--and always for heaven's sake--much more is at stake than simply whether or not you keep more of your own money in your pocket.    

Insult to Injury

Yesterday, President Obama insulted the Supreme Court and its member justices by describing it and them as but "an unelected group of people."

Today, he insulted as well proud Social Darwinists everywhere by calling the Republican-proposed budget--a plan that does not cut, does not halt, and only marginally slows the growth of an already fiscally unsustainable Leviathan--little more than a "thinly veiled" version of their nature-knows-best, survival-of-the-fittest philosophy.

I guess when he's in the mood to hurl invective, his philosophy is "let'er rip!"

"An unelected group of people"

Or, if you like Mr. President, one of our three co-equal branches of government.

The President from the Rose Garden yesterday on the likelihood of Obamacare being judged constitutional or not by the Supreme Court:

"I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress...I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step."

There is so much wrong with this:

First, there is absolutely nothing "unprecedented" or "extraordinary" about the Court overturning a law it judges unconstitutional.  That is precisely what the Court does; that is its constitutional role and the process by which it does so is called judicial review.

Second, no bill can become a law in the first place unless a majority of both houses of Congress vote for it.  We have no minority-passed laws.

Third, that Obamacare was passed by a "democratically-elected congress" no one denies, although the implication of his use of the phrase is clear:  All challenges to it are somehow un-democratic and therefore illegitimate, even if they are constitutional.

Fourth, that it was passed by a "strong majority" is false on its face.  As I said, it was passed by a majority by definition, but it was not passed by a representative majority.  No Republican voted for the bill.

Fifth, the Court performing its duty to judge a law constitutional or not is no definition of judicial activism.  Rather, judicial activism is defined as the Court stepping outside, and often eagerly so, the otherwise narrow process of judicial review in order to discover, to invent even, extra-constitutional rights from the "penumbra" and "emanations" of the in any case not fixed, but "living, breathing" Constitution, and thereby prescribing on its own what are in effect statutory obligations and mandates on the other two branches, on the states, and on the people.

Sixth, the phrase, "an unelected group of people," is in the first instance an insult not only to the dignity and integrity of the Court as a whole, but also a personal insult to each of its members, to include its more liberal justices who are likely to agree with the President about the law before them, not to mention the two of those Obama himself nominated.  But insults aside, that the Court is "unelected" not only goes without saying--we are all aware of the constitutional process whereby Court members are nominated, approved, and seated--that they are "unelected" is so by design.  The Framers quite deliberately sought to create and sustain an independent judiciary, a truly independent third branch that could effectually check and balance the other two precisely because it is unelected.



BTW, some of you may be thinking that these comments are contradicted by a couple of my previous posts (here and here).  Not so.  Those musings were about the absurd spectacle of us surrendering in this case our right to and duty of self-government to nine, five, or even one justice.  They were also a comment about the foolishness of pretending that the Court's decision here will in any legitimate sense resolve the underlying issue as this issue is simply too big for this or any Court to resolve.  It is simply, if not the last, certainly the most significant brick yet laid in the huge, monstrous, edifice that is the omnicompetent Nanny State, the Left's New Jerusalem.  For that decision, we all need to be involved, and quite directly so, because what we're talking about doing is abandoning the old and familiar America for an altogether new and different one.

The Guy's Just Weird

Keith Olbermann, that is, which I think is as much a reason as any for his most recent termination of employment (for all of them actually), this time from Current TV, Al Gore's latest effort to redeem and justify himself by raging against the Man.  But then Gore is pretty weird himself, so it never was a match likely to last for all that long.

Of course, for his firing we could add to his weirdness his penchant also for angry, unprofessional on-air rants, not to mention his spectacular hypocrisy.  But we don't have to because NRO's Rich Lowry does it for us:

Olbermann is the termagant of the Left, whose on-air biliousness is apparently not an act. He gives limousine liberals a bad name, since the stereotypical representative of the breed is at least satisfied with his car and his driver. According to published reports, Olbermann kept complaining about the car services contracted to ferry him to work to issue populist jeremiads in favor of Occupy Wall Street. 

Olbermann had a contract for $50 million over five years, a confirmation of the axiom that no matter how much someone derides corporate greed, he wants to make as much money as possible, ideally for as little effort as possible. Current had trouble getting Olbermann to show up to do coverage on election nights despite his status as the network’s “chief news officer.”

An Honest Commie?

This afternoon on MSNBC, Van Jones, self-professed communist and controversial former Special Advisor to the President for "Green Jobs", had this to say about Obama's coming re-election bid:

“I think if President Obama came out as gay, he wouldn't lose the black vote."

No real news in that, but, for a socialist, a noteworthy lapse from routine duplicity.

The Usual Suspects

In the latest issue of National Review, Lisa Schiffren writes an interesting review of Thomas Mallon's novel Watergate.  While it's not likely that I'll ever read the book, it's apparently unique in that Mallon, remaining mostly true to the known facts, retells the story by pursuing the more human interior thoughts and motivations of its cast of characters, to include, of course, Richard Nixon himself.

Schiffren concludes with general praise for the effort, but along the way scribbles this gem:

In a funny way, the most interesting thing about Watergate is that it is presented as a purely human drama, in which the characters all have a normal array of motives, goals, and emotions, far more personal than political.  Glaringly absent is the overlay of hatred, vilification, and presumption of intent to upend the Constitution to support a war, along with all the other outsized evil fantasies of Nixon and his staff, as conjured by generations of liberals, activists, Yale Law School students, Weathermen, and folk singers.

"...and folk singers."  I love that.