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October 28, 2003

Confusion of "Constitutional Conservatives"

Well, the nomination of Janice Rogers Brown for the D.C. Circuit Court of Appeals is launching another round of confusion on "judicial activism."

Take this typical piece by W. James Antle III at the conservative Toogoodreports.

Do Liberals Hate Judicial Restraint? On one hand he argues that liberals object to Brown because she believes in judicial restraint and "rejects the idea that judges should act, in her words, as 'philosopher kings.'" Quoting Thomas Sowell:

"Much of the liberal agenda can only be imposed by judges because elected officials cannot keep bucking public opinion. A judge who opposes judicial policy-making is a serious danger to their agenda and they will try to stop such nominees at all costs."
Okay, so what liberals like Charles Schumer want is judges who will overturn Congressional laws, according to these conservatives.

Except not.

Conservative Judicial Activism: Because Antle goes on to admit that what conservatives want is to appoint judges who will strike down Congressional laws outside the Constitution's "enumerated powers":

We have reached the point where those who wish to faithfully apply the Constitution as written and accept its limitations on federal power are considered "outside the mainstream of constitutional law," and that those who agree with the Framersī beliefs about the role of government are summarily disqualified from federal judgeships. Janice Brown finds herself in the same position as Charles Pickering, Bill Pryor and Miguel Estrada...Under the Framersī Constitution, Congress only may only legislate in enumerated areas. The Tenth Amendment leaves all other areas to the states and the people.
Unpack that sentence and you get to the point-- conservatives want "judicial policy-making"; they just want their version of it, the part that ignores the 14th Amendment and other subsequent amendments that expanded federal power.

Actually judicial restraint-- just letting the elected representatives in Congress act without court veto is foreign to these "constitutional conservatives" despite all their rhetoric. They want their judges to strike down laws they don't like just as liberals want judges to strike down laws they don't like.

For conservatives, citing to the "Founding Fathers," it's as if the Constitution is frozen in 1789-- although even that's not accurate, since the early Supreme Court almost never overturned any federal laws. John Marshall and his early Supreme Court was a dedicated proponent of strong federal power-- usually on behalf of rising corporate and slave interests.

Strong Federal Power in Early Republic: Early in the Republic's history, there was a massive bribery scandal as millions of acres in what became Mississippi and Alabama were sold off by the state of Georgia fradulently. The Supreme Court prevented Georgia from recinding the sales in a case called Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) in deference to the large property interests who now owned the land.

Or take the 1842 decision by the US Supreme Court in Prigg v. Pennsylvania, 41 U.S. 536, which gave southerners the right to defy Northern laws against self-help kidnappings IN NORTHERN STATES as a constitutional right. The decision explicitly repudiated Northern states' rights to regulate their own affairs in regard to kidnapping in their own borders. This repudiation of states rights is clear, as Justice Story wrote: "It is scarely conceivable, that the slave-holding states would have been satisfied with leaving to the legislation of the non-slave holding states, a power of regulation, in the abcense of that of Congress." Where Southern interests in slavery mattered, they were all for extinguishing local state power in favor of that of the federal government.

Racism and "States Rights": It was only with Reconstruction and federal civil rights laws after the Civil War that conservatives really became proponents of "states rights" as a way to overturn Congressional laws protecting blacks' civil rights. But they still supported massive judicial activism to strike down state labor laws and other state regulations of corporations-- with hardly any deference to state power if it collided with corporate interests. It was only with the New Deal Supreme Court that the courts began deferring to both state and national legislatures in matters of economic regulation. It was that "liberal" Court that established any doctrine of "judicial restraint" by the courts, although the later Warren Court would begin greater judicial activism on certain social issues, although they would actually strike down almost no Congressional laws.

So don't buy any of this rhetoric over "judicial restraint", "states rights" and so on. This is about the substance of decision-making. If conservatives want to argue that corporations should be unregulated and civil rights should be dismantled, they should argue for that on its merits. But this "constitutional conservatism" rhetoric is just a hypocritic smokescreen for their real substantive agenda.

Posted by Nathan at October 28, 2003 10:57 AM