Judicial activism--one side is lying

Here's the big secret about the Constitution of the United States: it's short. Really short. It only takes up 8 1/3 pages in my almanac. So, necessarily, a whole lot of it isn't defined clearly--in fact, much isn't defined at all.

Those who wrote it could have spelled out everything. Many other constitutions do, in excruciating detail. But our founding fathers chose not to. Why?

Because they wanted successive generations to reinterpret it according to the needs of the times, using the guiding principles set forth in the Constitution. Several said so explicitly in their correspondence, including Jefferson and Madison. And I think that because it represents a compromise intended to bring the backward Southern slave states under the national umbrella, the founders used intentionally vague language they perhaps hoped could be made more explicit once the slave states were firmly incorporated into the Union.

However we might guess their intentions, one thing that's clear is that they weren't inviting a free for all. If they wanted that, they could have skipped writing a constitution in the first place. Some countries--like the UK--have no constitution at all, and instead use the accumulated laws and precedents called the Common Law.

Our founders wanted our nation's judiciary and legislatures to take the middle path between a free for all and crippling fundamentalist exactitude.

So they weren't inviting judicial activism, which means judges making up laws, nor were they inviting the rigid originalism/textualism of explicitly spelled-out governing documents like the Qu'ran or the Old Testament.

Of course judges who are ideologues are often activist judges. But whether they're left wing or right wing, one thing they have in common is they never admit that they're activists.

In fact, I'd hazard to say that the more they invoke the sanctity of the Constitution, the more likely it is that they're about to trample it.

You can't listen to right wing talk shows for five minutes without hearing the name "Constitution" taken in vain, over and over.

And our Supreme Court's right wing majority has left the "impartial umpire" touted by Chief Justice Roberts at his nomination hearings...in the dust.

Same thing happened in the 1930s, when an equally ideological court dusted off the most arcane interpretations of the Constitution that you could imagine in its efforts to derail FDR's New Deal. And then as now, partisans of both sides believed they were dealing with an existential threat to the Republic, coming from the other side. Some might say the efforts of the SCOTUS of the 1930s succeeded in prolonging the Great Depression.

But whether that SCOTUS did or not, it was activist, and so is the current SCOTUS majority. Its long string of 5-4 decisions on big, important cases is a sign of that. Roberts said in his Senate hearings that he preferred unanimous decisions on narrowly defined issues to 5-4 decisions on sweeping ones. Instead he has shepherded one big 5-4 decision after another through the court.

I'm no law professor, but one who is lays this out in detail in a New York Times op-ed piece. Read it here.

He says--and I concur--that America's right wing ideologues have sold America a bill of goods in claiming that they're judicially modest while the Left and only the Left is activist. And backing up this claim by saying that they only go by what's in the Constitution is a baldfaced lie. The intentional fuzziness of the Constitution expects and demands continual reinterpretation. The Founders knew they couldn't know the future. That kind of humility is absent from Roberts, Alito, Thomas, and Scalia.

Take the 2nd Amendment. An originalist interpretation would take this as supporting the right of states to have militias, of which our National Guard is a distant cousin--and the "arms" those militias have a right to bear would be flintlocks.

Yet no self-styled originalist says any such thing. And SCOTUS recently declared that the 2nd grants citizens the right to bear modern firearms such as , say, AK-47s, which one competent soldier could use to destroy an entire company of Revolutionary Era troops. And it simply ignored the first phrase of that amendment's famous sentence that talks about state militias.

The SCOTUS judgment may be a good one--that's not what I'm contesting here--but it's patently a modern interpretation and not anything like originalism/textualism. Yet the justices who wrote this decision portrayed it as just that.

I'm not saying this because I always agree with the minority. I don't. But I don't like hypocrisy, which invariably leads to Bad Things, even if the immediate result is to my liking. As Emma Goldman said, "the means reveal the ends."

And the ends of right wing activist judges is to comfort the comfortable and afflict the afflicted, just as the ends of left wing activist judges is to afflict the comfortable and comfort the afflicted. That sounds inherently fairer, but it can lead to terrible errors.

However, those errors don't matter as regards SCOTUS, because it will have a right wing activist majority for decades, almost certainly, regardless of who's president or controls Congress, due to the comparative youth/health of that right wing majority and the relative age/health of the more liberal minority.

Plus, since the court almost invariably sides with the rich and powerful, the rich and powerful spare no expense to promote the current SCOTUS majority, using their sock puppet "think" tanks, talk show pundits, and other marketing venues.

Of course the left have their equivalents, including most unions, but they have far less money and power. It's an unequal contest, as such conflicts always have been.