Published: 03 April 2012 09:00 PM
In the lexicon of politics, “judicial activism” occurs when judges step outside the bounds of ruling on laws and seek to craft legislation from the bench.
But in the real-world dictionary of everyday discourse, it often takes on another meaning. Cries of judicial activism are often heard from the lips of those who disapprove of what a court is doing, before any weighing of the merits.
Telling public schools they can’t lead kids in prayer in the early ’60s? Judicial activism.
Creating a federal right to abortion in 1973? Judicial activism.
And now, with the possibility of a Supreme Court poised to overturn Obamacare, we hear from President (and supposed constitutional law professor) Barack Obama, who this week sought to stigmatize the justices’ possible rebuke as — what else? — judicial activism.
It is human nature to affix constitutional criticisms to laws we do not like, and to protect laws we admire from such criticism. Clarity requires examining each charge through that rarest of lenses — objectivity.
First, school prayer is one of the toughest calls. I have long approved of attempts to keep government schools from engaging in religious instruction. Sadly, we have seen the spread of an environment in which schools feel muzzled from teaching the factual elements of the devout beliefs of our nation’s founders, a far cry from instructing kids in what they should believe. Second, the Constitution has clear instructions when we run into issues not addressed within its text. The 10th Amendment leaves such matters to the states and to the people. Thus, the Warren Burger court’s wholesale concoction of a federal right to terminate a pregnancy is an offense against the system of laws born at our nation’s founding.
Roe vs. Wade is not unconstitutional because I am pro-life. It is unconstitutional because it is unconstitutional. There are plenty of things I disapprove of — porn, hate speech, renegade governments telling restaurants what their smoking rules can be — but I do not invent phony objections based on the Constitution.
Third, the three days of Obamacare under the Supreme Court microscope were not pretty. And now, faced with the dismantling of his trademark legislation, the president once again reaches for the bat he has swung at the Supreme Court before when it dared thwart him. In his 2010 State of the Union address, he scolded the justices to their faces by attacking the Citizens United ruling freeing up political spending by corporations and unions.
I admired that ruling, not because I seek more spending by corporations — I surely do not seek more spending by unions — but because campaign spending is free speech, and free speech is protected.
So are we all, from various examples of government overreach, such as a federal edict to purchase a product or service we do not want. Supreme Court votes against this are not activist. They do not seek to write law from the bench. They seek to properly erase law written by overzealous legislators.
The Supreme Court has done this often, an apparent surprise to the president, who said such a finding would be “unprecedented.”
What is unprecedented is the attempt to force every American to engage in undesired commerce. The Constitution allows Washington to oversee commerce that is actually occurring. It may not compel it to occur.
Obamacare advocates can lecture all day about why they want it to prevail, but their ammo belt is empty when it comes time to explain why it is permissible under the Constitution. Their charge that only an activist court would strike it down is a claim as empty as the legal defense for the Affordable Care Act itself.
Mark Davis is heard weekdays from 8:30 to 11 a.m. on WBAP News/Talk (820 AM and 96.7 FM). His email address is firstname.lastname@example.org.