Who Are the Real ‘Judicial Activists’ Here?

Critics of so-called “judicial activism” — examples of which are often court decisions they simply don’t like — loudly argue for a strict interpretation of the Constitution when judges interpret laws. So we find it hypocritical, to say the least, when those same critics later decide that the Constitution isn’t a sufficient basis for interpreting laws after all. Pastor Rick Scarborough, head of the Texas-based, far-right group Vision America, provided a good example of this kind of hypocrisy in an e-mail to supporters last week blasting U.S. Supreme Court nominee Elena Kagan.

Scarborough’s e-mail included the usual litany of right-wing attacks against Kagan, many of which obscenely distort the nominee’s record or what she said in her Senate committee hearings. But this one struck us as particularly revealing of the religious right’s contempt for the Constitution:

At her nomination hearings, in an exchange with Senator Tom Coburn, Kagan refused to say what natural rights she believes existed before and independent of the Constitution.

She also refused to embrace the affirmation of the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” Kagan claimed not to know which natural rights, if any, are affirmed by the Declaration.

By opposing natural law, Elena Kagan has disavowed the very principles on which this nation was founded, and opted instead for a theory of conditional rights based on the whims of the governing elite.

“Opposing natural law”? That’s not what Kagan said. Here are her responses to Sen. Coburn’s questions (ellipses are in place of specific questions from Coburn):

Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States. . . . I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws. . ..  I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws – that you should not want me to act in any way on the basis of such a belief. . . . I think you should want me to act on the basis of law, and that is what I have upheld to do if I’m fortunate enough to be concerned – to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

As MediaMatters points out, that’s pretty much the same answer conservative Justice Clarence Thomas gave in his Supreme Court nomination hearing:

As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don’t see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis.

There are, of course, two main reasons for Scarborough’s particular line of attack here. First, it’s part of the right’s coordinated and disingenuous campaign to derail her nomination. More importantly, however, it reflects the religious right’s frustration that the Constitution is a deliberately secular document. It is deliberately secular, of course, because the Founders believed the Constitution should protect the freedom of all Americans to practice their faith (or not) as they personally see fit. But lacking a constitutional basis for using government to promote their own religious perspectives over all others, religious-righters like Scarborough and Coburn often point instead to the Declaration of Independence — which, in fact, includes the words “Laws of Nature and Nature’s God.”

The problem for the religious right is that the Declaration of Independence isn’t American law. Our laws are based, instead, on the Constitution. Of course, as Americans we believe that all people have a right to “life, liberty and the pursuit of happiness.” But the job of a Supreme Court justice, as Justice Thomas  and Elena Kagan argued, is to interpret laws based on our written Constitution. If religious-righters want justices to interpret the law based on something else, then they should stop accusing others of engaging in “judicial activism.” In short, “physician, heal thyself “(Luke 4:23).

11 thoughts on “Who Are the Real ‘Judicial Activists’ Here?

  1. Strick Constitutional interpretation that includes the glowing phrases of the Declaration of Independence not included in the Constitution isn’t strict Constitutional interpretation. A classic example of the Law of Inverse Attribution in which the weakest virtue is touted, and the worst vice is blamed on the other. Strict Constitutional interpretation, therefore, means the inclusion of whatever was left out.

    That which the Declaration of Independence cited concerning laws is included in the Seventh Amendment which makes “The Common Law” bear on judicial preceedings. Additionally, any laws in effect in the States from colonial times remained in force if not in conflict with Constitution or subsequent Federal Law, Therefore there was no sudden break in what the laws meant one the adoption of the Constittion.

    Strict Constitutionalism as touted in Tea Party propaganda excludes any of the Amendments made subsequent to the secession of the states to join the Confederacy. Thus Madison is elevated to the highest level of Constitutional awe.

    I have recently seen Tea Party propaganda extolling the conclusion that the US is not a democracy, While in a narrow intepretation in accordance with classic political theory, President Andrew Jackson effectively buried the notion that only property owners would be enfranchised. Jackson was also congemptuous of both Congress and the Supreme Court,

    Tea Party condemnation of Congress, the Supreme Court, and the current occupant of the White House leaves open an unanswered question as to what form of government does the Tea Party mob want in place of a Congress, Supreme Court, and elected President and which does not include the demos (people).

  2. What I’m starting to be concerned with, is”how do we get to Rick Scarborough’s potential audience?” That is, there are those who have “drunk the koolaid”, whom will never be reached.
    There are those who may buy into this hooey if they’re not informed of the facts. We have to keep this debate going with all of these hypocrites and liars until they’re exhausted. That means we have to outlast them.

  3. Gordon: They don’t know what they want. They’re as mad as hell and they’re not going to take it any more.

  4. David:

    The right reverand Dr. Bruce Prescott has a recent primary post on his blog that directly addresses the subject of why people drink this Kool-Aid and become addicted to it. I thought you might find it interesting. The title is “How Made-Up Minds Threaten Democracy,” and it was posted on July 12, 2010.” Here is the URL:


    You will need to scroll down three posts or so to see it.

  5. The ability to use facts and logic at a Tea Party or Party Tea in the effort to avert the use of Kool Aid instead of tea, is hampered by the inability to discriminate between tea and koolaid. The former accelerates the mind, and historically kickstarted the Enlghtenment in establishements that sold the stimulent tea instead of mind numbing boooze. As an aid to deconstruct a Tea Party one turns do Narration Analysis, the study of buzz words, inasmuch as the findings of Tea Parties or thier collective counterpart, Party Teas, is the construction of a Narrative Analysis.

    Narrative Analysis, the analysis of the story form through which ideologies is expressed and absorbed also examines the flavor and nature of the buzzwords used to transmit the game system, role switches, Stamps, Scripts, payoffs, and attributions used. Most of us are familiar with Buzzword Bingo, an office game in which totally meaningless phrases can be assembled out of words with a high “buzz” factor and perhaps connotative meaning.

    A “Buzz” is the emotive connotation of a word, generally classified as “Warm Cozies” or “Cold Prickly”. Some infer a level of societal status, such as the use of the Norman French polysyllabic substitutes for your basic Anglo-Saxon, a throwback in the English language to where the French speaking Lords lorded over the conquered and crass, crude, Saxon peasants. In Shakespeare’s day it was more polite to say “I don’t give a foot” instead of “I don’t give a fuck” which disregards the fact that “foot” is a polite alliteration of “foutre” the old French word for fuck. As the Saxon absorbed more French words, the Norman French absorbed the language of the servants which shows in our legal language of “will and testament”, “metes and bounds” which a pairs of words from each language meaning the same thing.

    Thus in Buzzword Bingo, the aggregation of multiple polysyllabic attributive allegoric functional distributive Transformational Expeditionary stabilized rotations must mean something important because it uses all them big fancy words. When dealing with your basic Red Neck, it is wiser to stick to the Anglo-Saxon as the Scots Irish have a serious case of the ass against the Frenchified fancy pants college pukes that remind them of the Scottish and English aristocracies of their ancestors.

    Buzzwords can be clustered together by Buzz, all warm fuzzies or all cold prickly insofar as the specific culture or group is concerned such as the example above. An environmentally friendly, progressive, integrated, planned, and economically and socially just program is very Left. While a family oriented, independent, God-fearing, Constitutional program with no additional taxes is very Right.

    The negative side is not hard to envision. A reactionary market driven capitalist imperialistic oppression is, of course, very Fonda. While Godless, liberal, alien, immoral, illegal, and degenerate broken borders is pure Buchanan. These are Buzz Clusters, either Warm or Cold.

    The combination of Warm Buzz Clusters and Cold Buzz Clusters is, of course, a Cluster Buzz where the hot and cold create an synergy between them as they whirl around each other. Thus “stay the course” is a warm counterpart to “stay the course”.

    Cluster Buzzes are intended for internal shouting which is considered by True Believers to have some effect on the evil forces external. Thus campaign rhetoric is not a form of communication between sides as in a debate or even at each other as in a shouting match, but is largely shouting past each other to hear themselves emote. Such is the Buzzery between Bush and Bin Ladin. Or between the Campus Left and the Christian Right. They don’t even hear each other.

    There are exceptions, sometimes there is a shouting match, and sometimes Cluster Buzzes overlap. Sometimes a buzzword means something entirely different such as “market economy” which to business school students means where goods and services are exchanged for things of value, while across the rest of the campus it means theft of labor value by corporate imperialists.

    Buzzwords, Buzz Clusters, and Cluster Buzzes are shifting constellations with often internally inconsistencies that belie ordinary logic. But logic is the function of the Adult ego state, and Buzzes and the science of Buzzes, Buzziology, is in the domain of the Child Ego state acting as if it were an Adult or a Parent, nurturing or protective.

    The proper analysis of a Narration pays careful attention to the buzziology of the target as it is the language of propaganda and is very culture sensitive.

  6. Gordon, what the heck have you been smoking??

    David, you’re absolutely right about teabaggers not knowing what they want. They bitch about too much government, and they bitch about not enough government. They seem to want to be governed by Corporateworld, but they complain about that too.

    They really have no solutions, no answers. They just like to bitch.

  7. Charles, thanks for the link .
    The Alistair Cooke link was great too.
    Gordon, that was good.

  8. The Tea Parties are fools being led by idiots.

    Now the half-term governor is comparing her verbal screw ups to Shakespeare! And here I thought the days of Bushisms were over.

  9. The Buzz Cluster can be syntonic or distonic, the one gaining velocity by reinforcment of themes and symbols of the same buzz, and the other by the tension between them. The Nazi position on Jews was a Distonic Buzz Cluster with the Jew being the common denominator between Capitalism and Communism. A Nazi could be outraged against Jews because they had too many jobs that required smarts, and that was insulting to the German race as, by definition, were an inferior race.

    The fact that Capitalism (as defined by Socialists, be they of the national or international variety) aka High Finaceis inconsistent with Communism does not trigger some mot of cognitive disssonence which according to psychological theory is supposed to create a sense of discomfort leading to rational thought to resolve the conflict between two inconsistent beliefs.

    The True Believer, IMHO, thrives on cognitive disssonance as the dissonance is part of the buzz. One can’t be cornered in a round argument.

    The War for Texas Independance (Alamo, Goliad, Battle of San Jacinto was fought, in no small part, to preserve the freedom of Texians to own slaves. Slavery was illegal in Mexico, and Texians were ordered to cease slave owning of face military inervention.

    Equal Opportunity/Affirmative Action is a politically correct Buzz Cluster which contains two contradictory notions simultaneously, one prohibiting racial profiling, and the other requiring it. One cannot be required to put one’s race on a resume, but the hiring official must take race into hiring to meet Affirmative Action goals. The common ground in EO/AA is to hire minorities, while the purpose of the Nazi dichotomy was to exterminate the minority.

    Tea Party propaganda is a grab bag of various often dissonant buzzes, and the mere fact of many being contradictory is an advantage, rational thought not being of high value. It’s the noise, the buzz, that counts. The Nazis were dismissed for their inconsistencies by many well educated Germans. That disdain became a luxury ill afforded.