The Activist Judges

Conservatives don't like it when things don't go their way. Case in point is conservative anger over the so called "activist" judiciary. Conservatives argue that judicial decisions they don't agree with, such as Roe v. Wade, are poorly constructed because they are not written by "strict constructionists", judges who only interpret the exact wording of the constitution, and do not adapt it to new circumstances.

There are two things wrong with this argument. The First is that the adaptation of constitutional principles, even those not specifically enumerated in the constitution, is essential. The framers of the constitution had no concept of such issues as medically safe abortions, wiretapping, "enemy combatants", or desegregated public schools. These things simply did not exist at the time the constitution was written, thus the fact that the constitution makes no mention of something such as abortion does not prove the framers intended to deny citizens the right to have one. In order to remain relevant, the constitution must adapt.

The second fallacy of the conservative argument is to claim that judicial decisions that adapt the constitution to new circumstances always favor liberal ideals. The constitution says nothing about corporate personhood, yet the Supreme Court arbitrarily declared that corporations are legal persons, protected by the constitution. The constitution says nothing about the right of an employer to pay their workers whatever they want, yet for decades the Supreme Court ruled that the federal minimum wage was unconstitutional because it denied employers this "constitutional" right. The constitution says nothing about the Supreme Court having the authority to decide a disputed presidential election, and yet that is precisely what they did in Bush v. Gore. I didn't hear any conservatives complaining then.

The fact is that when conservatives disagree with court rulings, they attack the court's integrity. When the agree with court rulings, they are silent on the matter. Its a blatant case of hypocrisy, but their massive media machine has made the myth of the "activist judiciary" so powerful, even the average layperson is now inclined to agree that the courts are "out of control". This is a very dangerous state of affairs, threatening the separation of powers. In fact some are threatening more than that, with a Republican United States Senator recently making veiled threats on the lives of judges on the Senate floor. Unfortunately for Democrats, the Republicans have been able to make the judges an issue. Fortunately for Democrats, the debate of the judiciary is an easy one to win, for the conservative's hypocrisies are so glaring. All we need to do is engage in the debate.

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