The "Judicial Activism" ploy

[Little-Acorn]

With all the screaming, shucking, and jiving being frantically done by the usual leftists over the Federal Court's ruling of Barack Obama's most important legislation unconstitutional, Thomas Sowell provides a timely analysis. He cites several Supreme Court cases, the details of which are downright funny if you look into them.

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http://townhall.com/columnists/thomassowell/2011/02/08/the_judicial_activism_ploy/page/full/

The "Judicial Activism" Ploy

by Thomas Sowell

Now that two different federal courts have declared ObamaCare unconstitutional, the administration's answer is to call the courts guilty of "judicial activism."

Barack Obama has a rhetorical solution for every problem. Remember the repeated claims of "shovel-ready" projects that needed only federal stimulus money to get started? Last year the President quietly admitted that there were not many "shovel-ready" projects, after all.

But the phrase served its political purpose at the time-- and that was obviously all that mattered. Now, in the wake of rulings by two different courts that ObamaCare is unconstitutional, rhetoric is being mobilized again, without any fussy worries about facts.

"Judicial activism" is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything.

In recent years, a brand-new definition of "judicial activism" has been created by the political left, so that they can turn the tables on critics of judicial activism.

The new definition of "judicial activism" defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don't need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a "judicial activist."

A judge who lets politicians do whatever they want to, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution.

The Tenth Amendment to the Constitution says that the federal government can do only what it has been specifically authorized to do by the Constitution. Everything else is left to the states or to the people themselves.

Nevertheless, back in 1942, the Supreme Court said that because the federal government has the right to regulate interstate commerce, the Department of Agriculture could tell a farmer how much wheat he could grow, even if the wheat never left his farm and was consumed there by his family and their farm animals.

That case was a landmark, whose implications reached far beyond farming. If the meaning of "interstate commerce" could be stretched and twisted to cover things that never entered any commerce, then "interstate commerce" became just a magic phrase that could make the Tenth Amendment disappear into thin air.

For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce.

But there was consternation among politicians and the media in 1995, when the Supreme Court said that carrying a gun near a school was not interstate commerce, so that Congress had no power to regulate it-- even though states had that power.

Howls of protest went up from politicians and the media because the Supreme Court voted 5 to 4 in favor of an ordinary common-sense reading of the Constitution, instead of the clever word games that had been used for so long to circumvent the Tenth Amendment.

ObamaCare is another piece of Congressional legislation for which there is no federal authority in the Constitution. But when someone asked Nancy Pelosi where in the Constitution there was any authority for passing such a law, her reply was "Are you kidding?"

Two federal courts have now said that they are not kidding.

The ultimate question is whether the Supreme Court of the United States will back them up. That may depend on how soon the case reaches the Supreme court.

If the issue wends its way slowly up through the Circuit Courts of Appeal, by the time it reaches the Supreme Court, Obama may have put more of his appointees there-- and, if so, they will probably rubberstamp anything he does. He would therefore have done a complete end-run around the Constitution and be well on his way to becoming the Hugo Chavez of North America.

 

[pocketfullofshells]

Judaical activism=...rulings you don't like..

 

[Gipper]

Judaical activism=...rulings you don't like..

Good lord....you really are something. Not sure what.

You clearly fall in Sowell's trip.

Now can a socialist law be unconstitutional in the mind of liberal?

Its not rocket science. Is it or is not, constitutional?

 

[Rick]

The most egregious case of judges making law from the bench remains Roe v. Wade. As to the interstate commerce clause, that was put in the constitution because under the prior Articles of Confederation, states were doing such as collecting "import duties" for goods from another state transported into their state, a practice that was getting out of hand. The framers obviously would have been stunned at what congress has made the ICC a justification for - a broad license to regulate anything and everything that has even the most minimal and indirect connection with more than one state - it's long past time that federal judges rein this in.

 

[Little-Acorn]

The most egregious case of judges making law from the bench remains Roe v. Wade.

Well, court-ordered busing is up there too, when it comes to judges doing things they had no authority to do.

Whether that busing was good for the country, is debateable. But whether the judge had the authority to order school districts to get out their buses and use them for purposes completely different from what the districts bought them for, is open and shut: They had NO authority to order that. It was a classic case of Judical Activism, and there has seldom been a more obvious one.

The framers obviously would have been stunned at what congress has made the ICC a justification for - a broad license to regulate anything and everything that has even the most minimal and indirect connection with more than one state - it's long past time that federal judges rein this in.

It's even worse than that. In the case Sowell cites, during the Great Depression, a farmer was growing wheat for his and his family's own personal consumption. Not only did that wheat never cross a state line, it literally never even left his own farm. Did George Washington and the others intend that that wheat be restricted by the govt, under Congress's power to regulated interstate commerce? The idea is laughable.

Yet the lawyers said that, since the farmer was consuming this wheat, that meant he was NOT buying wheat from others that he WOULD HAVE consumed if he hadn't grown his own. And that wheat that he MIGHT have bought from others, MIGHT at some point have crossed a state line. (Following this so far?) And so, the lawyers argued, the wheat the farmer grew and consumed himself, affected the other wheat that might have been in interstate commerce, by PREVENTING the farmer from buying that other wheat. Therefore, the farmer growing and consuming his own wheat, had some effect on interstate commerce... and so the farmer's own wheat could be restricted by the government under the Interstate Commerce clause.

Such was the "logic" of the leftist fanatics of that day. And the Supreme Court, after months and years of haranguing, nationwide vilification, and other such "community organizing" by FDR and his minions, quivered, caved, and approved this "argument".

The case US v. Lopez in 1995, was almost as silly... but with a fortunately better outcome. Leftist fanatics were trying to argue that a kid who brought a gun to his school, was affecting Interstate Commerce. Yes, really. Their arguments were as convoluted and tortured as the wheat lawyers were. But then, Chief Justice Rehnquist smiled kindly at the prosecution lawyers, and asked one of them if he could name ANY power the government couldn't justify for itself by using such tortured "logic". The lawyer hesitated for a LONG time, and finally admitted that he couldn't; and that the government could seize ANY power it liked if the Court would aquiesce to the kind of crazy arguments they were trying to apply in this case.

Basically, the lawyers trying to promote those arguments, got laughed out of court. The Court ruled in the Lopez case, that bringing a gun to a school did NOT affect interstate commerce, enough to justify government control of guns in schools. Believe it or not, it was the FIRST major deviation from the screwy policies that had been foisted on the nation since the dark days of the Depression... and that Wheat case. And it didn't happen until 1995 - SIXTY YEARS of such screwy jurisprudence!