Half a century old, Liberal Judicial Activism continues as the greatest threat ever posed to American constitutional democracy. Unfortunately, it has also taken fifty years for the American people at large to comprehend the profound nature of the threat, but the good news is that a dialogue aimed at eliminating this scourge has begun. However, we must take care that this national conversation begins where all sensible conversations ought to begin: with a definition of terms. To that end, the following analogy may prove useful.
What would you think of a mortgage company that offers mortgages under the following conditions, all of them decided by a five member majority of its nine member board of directors?
“Our company rejects the idea of fixed rate mortgages and offers only variable rate mortgages because we believe that the ‘original intent’ of contract language (even if such intent can be ascertained) must be viewed as subordinate to the fact that every contract is a ‘living document’ to be interpreted according to ‘evolving social standards.’
In establishing the initial and subsequent interest rates of our mortgages, we will at times consider the Prime Rate or the Fed Funds Rate. When we base a decision upon either of these factors, we will argue that it was guided by a “national interest rate consensus.” However, at other times we will completely ignore the national consensus, no matter how broad. In those cases, we will argue that our search for social justice demands that we serve as arbiters of “evolving social standards,” no matter how much our opinion lies in the minority or how much it is unsupported by the contract’s language.
Cognizant of the implications of international opinion, we will from time to time consider foreign interest rates in making our decisions. However, a five member majority of our Board remains the sole arbiter of whether to take foreign rates into account, which foreign rates to deem relevant, and which to ignore.
Regarding any disputes about the contract’s language, the opinions of the five member majority shall be deemed absolute, remaining beyond the purview of any court, any executive, or any legislative body in the nation.
Customers may, however, amend the contract through the following procedure: One or more customers must convince two thirds of the members of the House and the Senate or two thirds of the nation’s state legislatures to propose a change. After the change is proposed, it must be ratified by the legislatures of three fourths of the states.
Final Note: Customers who are successful in amending the contract should be aware of the following fact: A five member majority of the Board may circumvent the provisions of an amendment (or of any other part of the contract) by applying an activist interpretation to contract language which serves their purpose.”
Through an analogy such as the one above or through scholarly expositions, the American people are becoming increasingly aware that the defining quality of judicial activism is indeed its dictatorial nature. As this knowledge increases, people across the nation will ask Democrats, whose party is the great proponent of judicial activism, to explain why Democrats fail to use their favorite word, “extremist,” to describe an anti-democratic idea which has allowed Liberals to achieve in the courts what they cannot achieve (and are too cowardly to try to achieve) at the polls.
Moreover, people across the nation will ask Democrats why they never hurl the term “extremist” at judges such as Justices Ruth Bader Ginsburg and Stephen Breyer.
Honest answers to those questions would go a long way in promoting an informed national debate. But modern Democrats are not known for their willingness to state and firmly defend their core beliefs; therefore, this is what the public will not hear:
“We Democrats would never call Justice Ginsburg an extremist because she served the ACLU as a member of its board of directors and as general counsel. In fact, we proudly place all ACLU members smack-dab in the middle of the American political road. Doesn’t everyone?”
“We Democrats would never call Justice Ginsburg an extremist because in Ashcroft v. Free Speech Coalition she found virtual child pornography to be protected speech while in McConnell v. Federal Elections Commission she ruled that actual speech citizens employ during political campaigns does not fall under the First Amendment’s full protection. The common sense and scholarly consistency of those decisions is clear to all Americans, except, of course, card carrying members of the Vast Right Wing Conspiracy.”
And what of Justice Stephen Breyer, who has interpreted the Constitution with “help” from judicial decisions made in India, Jamaica, and Zimbabwe? The same Justice Breyer who in a discussion with Justice Scalia said that “in the United States . . . law is not really handed down from on high, even from the Supreme Court. Rather, it emerges [from a] conversation among judges, among professors, among law students, among members of the bar.”
“We Democrats are proud to proclaim that we believe law to flow not from George Washington’s “explicit and authentic act of the whole people” but from the opinions of judges and lawyers who have cherry picked support from foreign laws. And you can be certain of this: We will take our fight in support of the relevance of foreign law to American jurisprudence to every voting precinct in the nation!”
No, we are not likely to hear Democrats advance a national debate about judicial activism with truth and honesty. But that debate will continue despite the fact that the ice which surrounds the pit of Dante’s hell will melt into a beautiful lake before Democrats charge into every voting precinct in America to openly and proudly present the American people with their honest sales pitch for the variable rate constitution.
Copyright by A.J. DiCintio
