I watched a movie this afternoon that I hadn’t seen in a while, The Majestic, starring Jim Carrey. It was set in 1951, during the House Unamerican Activities hearings. It’s a sort of Capra-esque period film, but, given what’s been happening in the news politically recently, it was interesting to watch. It has inspired this post, and hopefully one other if I can eke it out by tomorrow.

The Declaration of Independence? The Constitution? They’re pieces of paper with signatures on them. And you know what a piece of paper with a signature is? A contract. And contracts can be renegotiated at any time. – Author Michael Sloan from the screenplay for The Majestic, spoken by the character Leo Kubelsky, studio lawyer.

In his opening statement kicking off “Ghosts of Nominations Past: Setting the Record Straight,” Sen. Schumer declared that Senate Democrats on the committee had been doing their level best to grapple with a breakdown in the process caused by Republicans. The problem, according to Sen. Schumer, went well beyond the stalling resorted to by Republicans when they were last in charge of the Senate Judiciary Committee. The crux of the matter was President Bush’s determination to pack the federal courts with “right-wing ideologues” in the mold of Scalia and Thomas, judges well outside of the mainstream, bent on implementing their extremist political views through conservative judicial activism. What was needed, Sen. Schumer proclaimed, was for the president to nominate moderates — by which he seemed to mean those who would interpret and enforce the law, rather than disregard and willfully rewrite it in order to advance a fierce partisan agenda. – Peter Berkowitz, National Review Online – It’s Unanimous – May 17, 2002

(Senator Hillary) Clinton announced Thursday she will oppose Roberts after the Senate Judiciary Committee voted 13-5 to recommend confirmation. The full Senate is expected to vote next week.

She cited “an obligation to my constituents to make sure that I cast my vote for chief justice of the United States for someone I am convinced will be steadfast in protecting fundamental women’s rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches.”

She added that after Roberts’ testimony before the Senate Judiciary Committee earlier this month, “I believe the record on these matters has been left unclear.”

She said her “desire to maintain the already fragile Supreme Court majority for civil rights, voting rights and women’s rights outweighs the respect I have for Judge Roberts’ intellect, character and legal skills.”

Edward Cox, a Manhattan lawyer and son-in-law of President Richard Nixon who also is seeking the GOP Senate nomination, said Clinton “had a chance to show that she could rise above blind partisanship and not be beholden to left-wing attack groups.”

“The senator unfortunately has again decided to join the likes of Ted Kennedy and the liberal wing of her party in support of judicial activism,” Cox added. Associated Press story, 9/24/05

Ruth Bader Ginsburg told an audience Wednesday that she doesn’t like the idea of being the only female justice on the Supreme Court. But in choosing to fill one of the two open positions on the court, “any woman will not do,” she said.

There are “some women who might be appointed who would not advance human rights or women’s rights,” Ginsburg told those gathered at the New York City Bar Association. AP Story, 9/21/05

If Americans loved judicial activism, liberals wouldn’t be lying about what it is. Judicial activism means making up constitutional rights in order to strike down laws the justices don’t like based on their personal preferences. It’s not judicial activism to strike down laws because they violate the Constitution.

But liberals have recently taken to pretending judicial activism is — as The New York Times has said repeatedly — voting “to invalidate laws passed by Congress.” Invalidating laws has absolutely nothing to do with “judicial activism.” It depends on whether the law is unconstitutional or not. That’s really the key point. – Ann Coulter, Actually, ‘Judicial Activism’ Means E=MC2

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.” – Lewis Carrol, Through the Looking Glass

“My obligation is to the Constitution. That’s the oath.” – Judge John Roberts, Senate confirmation testimony.

That’s a lot of quotes, but hopefully you got the gist of it. For the Left, “judicial activism” is restraining “progressive” legislation (that just happens to contravene the Constitution). For the Right, “judicial activism” is creating law from the bench, or upholding “progressive” legislation though it violates the Constitution, because it “advances rights,” (as the Left defines “advancing rights.”)

The Senate Democrats proclaim that they want to make sure that Roberts is a “moderate,” or at least not a “judicial activist.” They’ve suddenly fallen in love with the concept of stare decisis. As I noted back in June over the Janice Rogers Brown nomination, at question is what Duke University law professor Erwin Chemerinsky called “shred(ding) the last eighty years of American Constitutional law.” Yet his counterpart, Chapman University law professor John Eastman rebuked him:

What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930’s that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can’t question that unconstitutional action that occurred in the 1930’s, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary. There are scholars on left and right that have understood that what went on in the 1930’s was…had no basis in Constitutional law, or in the letter of the Constitution itself.

But it extends well past the 1930’s, and everyone in the Senate knows it. Chemerinski recently wrote:

Since (Lewis F.) Powell’s resignation, Sandra Day O’Connor has been the fifth vote in such crucial areas as upholding the right to abortion, limiting campaign contributions, protecting the separation of church and state, and permitting universities to engage in affirmative action.

None of this was, in Chemerinski’s eyes, “judicial activism,” and he adds:

Democrats need to oppose any nominee who would bring about significant changes in these areas.

James Madison, writing under the pseudonym Publius, in Federalist #78 defined the intent of the Supreme Court:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

However, see: Kelo v. New London, Raich v. Gonzales, Wickard v. Filburn, Scott v. Sanford, U.S. v. Cruikshank, …

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Which is why every elected and appointed Federal official swears an oath, not to the flag, not to the nation, not to the President nor to Congress, but to uphold and defend the Constitution of the United States against all enemies, foreign and domestic.

But of course, if you’re able to redefine the language, “uphold and defend” can mean anything you like. Just like “judicial activism.”

Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning.

Something has gone seriously awry with this Court’s interpretation of the Constitution. Kelo v. City of New London, Thomas, J. dissenting.

The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. Wabaunsee v. Umbehr, Scalia, J. dissenting.

That’s the First Amendment, Mr. Chairman. It’s the backbone of this nation. It’s everything that gives us the potential to be right and good and just — if only we’d live up to that potential. It’s what gives me the right to sit in this chair and say my piece before this committee without fear. It’s the most important part of the contract that every citizen has with this country. And even though this contract… the Constitution and the Bill of Rights — even though they’re just pieces of paper with signatures on them — they’re the only contracts we have that are most definitely not subject to renegotiation. – Author Michael Sloan from the screenplay for The Majestic, spoken by lead character Peter Appleton.

Apparently Mr. Sloan hasn’t been paying attention to the courts.

But he’s bang-on-the-money about that “if only we’d live up to that potential” part.

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