Posted on 07/23/2005 4:53:33 PM PDT by CHARLITE
Those who want to see judges who will apply the law instead of imposing their own policies face not only political obstruction to the appointment of such judges but also calculated confusion about the very words used in discussing what is at issue.
Judges who impose their own preferences, instead of following the law as it is written, have long been known as "judicial activists" while those who carry out the law, instead of rewriting it to suit themselves, have been said to be following the "original intent" of the law.
But now a massive effort to muddy the waters has been launched by those who want judges who will continue to impose the liberal agenda from the bench. Words like "activists" and "intent" are being twisted beyond recognition.
Senator Patrick Leahy has redefined "activist" judges to make the least activist Justices on the Supreme Court -- Antonin Scalia and Clarence Thomas -- suddenly activists by his new definition.
Senator Leahy has said: "The two most activist judges we have right now are Justice Thomas and Justice Scalia, who have struck down and thus written laws of their own in place of congressional laws more than anybody else on the current Supreme Court."
One of the major functions of the Supreme Court for more than two centuries has been to strike down acts of Congress, the President, or the lower courts when any of these exceed the authority granted to them by the Constitution. Calling this "judicial activism" is playing games with words and befogging the real issues.
When Justices Scalia and Thomas enforce the limits set by the Constitution, that is not writing "their own new laws," no matter what Senator Leahy claims.
Those who are writing their own new laws are people like Justice John Paul Stevens, who arbitrarily expanded the Constitution's authorization of government taking of private property for "public use" to allow the taking of private property for a "public purpose" -- which can be anything under the sun.
It is one thing to allow the government to take land needed to build a military base or a dam and something very different to allow the government to bulldoze people's homes to turn the land over to a private developer to build casinos or shopping malls.
Liberal law professors have joined in the redefining of words. One has given a numerical meaning to "judicial activism" by counting how many laws particular Justices have declared unconstitutional. As Mark Twain said, there are three kinds of lies -- lies, damned lies, and statistics.
Another law professor, Stanley Fish of Florida International University, likewise befogs the obvious with elegant nonsense.
Those who try to follow the "original intent" of the Constitution cannot do so, according to Professor Fish, because "the author's intent" cannot be discerned, "so the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention."
Clever, but no cigar.
While the phrase "original intent" has been used as a loose label for the philosophy of judges who believe in sticking to the law as it is written, judges with this philosophy have been very explicit, for more than a century, that they did not -- repeat, not -- mean getting inside the heads of those who wrote the constitution.
Justice Oliver Wendell Holmes said it in plain English, that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."
Such contemporary followers of Holmes as Judge Robert Bork have said the same thing in different words. More important, nobody ever voted on what was in the back of someone else's mind. They voted on the plain meaning of obvious words.
There is no confusion between the government's taking land for its own use and seizing land to turn it over to somebody else. The only confusion is the calculated confusion of the partisans of judicial activists.
Dr. Sowell is a senior fellow at the Hoover Institution.
What I lack in consanguinity with Mr. Sowell is made up by our congruence on all things political and generational.
If "consanguinity" is a reference to Sowell's race, which I'm sure it is, then you have attempted to diminish the impact of his words IMO. Why would you do that?
Liberals prey on the ignorant.
Why do you think that denying consanguinity with a brilliant Negro in any way diminishes the words of the brilliant Negro? Do I detect an implication of Negro inferiority in your words?
Sowell, right on as usual.
The question is, what makes his race relevant? Why did Charlite include his picture in her post? Why are we even talking about this? Because Sowell's picture stimulated Old Professor to reference his race instead of his remarks.
Most freepers know Dr. Sowell and are big fans of his. None of us is ignorant of his race, in fact we thrill in it as he exposes as frauds any who lean on it as a crutch. We fully appreciate his friend Walter Williams also. Any mention of this by Old Professor only serves to tell us that he is white.
No need to get hypersensitive about something the rest of us are way ahead of you on.
Anyway, Old Professor forgets that the further back we go the more consanguinity we all have.
Using confusing langauge is on the TOP TEN LIST OF TACTICS LIBERALS USE TO WIN ON ISSUES THEY WOULD OTHERWISE LOSE.
Do you fully appreciate his friend Milton Friedman, too? Oh, oh. No consanguinity there.
This is the problem with the Left. They're so mired in deconstructionist stupidities that they've made the Constitution meaningless.
One gets the impression, however, that if the "author's intent" of Roe V. Wade was deconstructed by the Right, the Left would howl in protest. After all, the only laws that are a matter of mere linguistic "interpretation" are the laws liberals don't like. The rest? Why, they're the "settled law of the land."
Way ahead of me? I have almost every one of his books and have even read some of them. He has been a hero of mine for years. But I don't think of him as a credit to his race.
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BUMP
The Liberals are again making tactical mistakes.
It is universally acknowledges there are certain issues perceived as strengths (rightly or wrongly) by the American people as due to each party.
Ex. No matter what a Republican does, Democrats by default are given props for health care. Ex. No matter what a Democrat does Republicans are given props for national security. These are default strengths.
They can be narrowed, but it's rare you equal or trump the perception of these strengths. It would take years for the Republicans, with a unified cohesive plan, to overtake the Liberals strength on healthcare if they desired to do so. Ditto the Dems. Rhetoric will not change the perception, expecially when that rhetoric centers around withdrawl from conflict.
The Dems have chosen to engage the Republicans on their strengths for two election cycles. They've dented Republicans but have not been able to overtake. So what do they do? Instead of focusing on positions where the public would give them default trust, they keep centering on our strengths in pigheaded belief they can beat the public down enough to give the the edge. Maybe they can, but it will take longer than two terms of a Republican Presidency to do this. In the meantime they'll lose more power, becoming irrelevant. They are digging a hole it will take generations to climb out of.
If the Libs want to focus on the WOT and Judiciary, I welcome them to do so since it'll benefit us. It just goes to show the Dems' braintrust no longer resides in their leadership.
Sorry, I don't see his words that way.
Sowell does a good job here shining the light on one of the many areas the left is using their underhanded tactics to destroy what's good, for their own political gain. Up is down, black is white, right is wrong, etc. etc. They try to do it with nearly everything, but in this case, it is our very own Constitution.
Not to long ago, Walter Williams was filling in for El Rushbo, and had Sowell on the phone for a couple of segments. It was a great pleasure to hear these two laughing at and poking holes in the "logic" of the left.
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