The Political Spectrum

Publius, over at Legal Fiction (who evidently reads this blog, hello), has this insightful if misguided piece on what he sees as conservative judidicial activism in regards to the economic sphere. I'll try to keep the quoting to a minimum, so please read his piece first to get a better understanding of what he says. Good. Now in case you were lazy and didn't click, here are some highlights:

All congressional actions must be rooted in some grant of authority in Article I. The Constitution is silent, however, on which branch of government gets the final say-so on whether a congressional action is in fact within the enumerated powers of Article I.

Now this is verrrrrry interesting. The Constitution is in fact silent on what branch of government has the final say on all constitutional matters, but you wouldn't know that reading most left-wing pundits and scholars (and most conservative ones as well, quite frankly). It is rather odd though perhaps gratifying that Publius acknowledges this, though he seems to limit the discussion to interprations of congressional actions.

Unfortunately, like it or not there is this little-known case, perhaps some of you have heard of it, called Marbury v. Madison which posits that any act passed by Congress which violates the Constitution is null and void. There were many howls of protests after Marshall rendered his decision, but it has managed to stand the test of time for a mere two hundred years.

Publius goes on to state that the Court's decisions in cases such as Lopez and Morrison were not guided by any real desire to uphold the Constitution, but in fact represented the Court trying to assert its powers. Umm, no. The Court took a look at the insipidly insane arguments of the government and its efforts to say that gun violence affected interstate commerce and said "You've got to be kidding us." (Okay, they really didn't say that, but they came close. I always picture the judge in the Simpsons banging his gavel and bellowing "DENIED!" when I think of Lopez.) In both of the big commerce clause cases of the nineties the Courts stated that there actually had to be some real connection between the act and interstate commerce. Not really hard to do, you know. Oh sure, maybe it would hamper the government's ability to harass farmers who dared eat the bread with the wheat that they grew on their own farms, but at least we can live with the knowledge that Congress was in fact working within our Constitution.

Publius' big beef is that the conservatives in the Court are merely doing in the economic sphere what liberals have done in the social, and both are forms of judidicial activism. This is standing logic on its head. In cases like Roe the Courts made law. They found in the Constitution rights that simply did not exist. In cases such as Lopez, the Court denied Congress' ability to pass a law that flagrantly violated the Constitution. They did not make law; they prevented an unconstitional law from being furthered.

Publius also bemoans the anti-democratic nature of such activism, and how conservatives are being hypocritical on this front. Well let this Jefferson-hating conservative state for the record that I do not care if the Court overturns a democratically enacted law that flagrantly violates the Constitution. Consider me a Marshall conservative. I do, however, very much get duly riled up when the Court overturns a democratically enacted law that is not forbidden by the Constitution, but instead merely offends the progressive sensibilities of the high Court, as they did in Lawrence. That, my friends, is judicial activism. Judicial activism is not the Courts upholding the rule of law.