You’ve probably already seen this quote from the federal district court judge in the Dover, Pennsylvania, “intelligent design” case, Kitzmiller v. Dover:
Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.
This is much the same as I have argued in the same-sex marriage debate. It is the politicians, the anti-gay bigot advocacy groups and, in some cases, the voters who are being “activist.”
It is patently absurd to argue that a judge, applying longstanding legal principles to laws and state constitutional amendments that are both un-American and constitutionally suspect, is somehow “abusing” his office. All the way back to Marbury v. Madison and even before that: This is what judges do. This is what judges have always done. This is what the Framers wanted judges to do. This is what you are forcing judges to do. You have no one to blame but yourselves.
Just as it is both wrong and dangerous to assert that the President has “plenary authority” (i.e., is a dictator) in time of war, so too is it both wrong and dangerous to assert that voters have “plenary authority” (i.e., are entitled to mob rule) in time of culture war.
It’s quite simple really: If you don’t want “activist judges” striking down your laws, then don’t enact those laws in the first place. If you don’t want those who oppose you suing, then don’t leave them with no avenue besides the one leading straight to the courthouse.
In short: The judges will stop being activist when you stop being activist.
Deal?
2 responses so far ↓
Link John T. Kennedy // Dec 23, 2005 at 3:08 am
"It's quite simple really:"
Yeah. If you don't want to spend the rest of your life fighting over who gets to shove what down whose throat then you shouldn't cast your lot with democracy.
[Kip replies: Actually, that's my point exactly. The Constitution was meant to protect us from democracy, not to protect democracy from us.]
Link John T. Kennedy // Dec 23, 2005 at 3:59 pm
Oh, you have speed bumps? Then I'm sure everything will be fine.
No, wait a minute, that didn't stop you from ramming secular schools down the throats of millions of religious parents, did it? They get to pay for these schools no matter now offensive they find them.
They were constitutionally protected from that how?