Judges are activitists, so what's your point?

In this campaign season, I expect that we will hear a lot of railing against activist courts in Montana, particularly in the light of the vote we will have on same sex marriage. I wish it would go away. I am so tired of having to define people by what goes on between their waists and their knees. The whole issue is one of control, not of morals or traditions. And, I think, after having made the effort and spent the money to pass the thing, it will all be thrown out by the U.S. Supreme Court as unconstitutional.

But before and after that happens we, in Montana, will hear a lot about activism in the courts. It is interesting to me that activism, in that sense, seems to relate to the defending the rights of individuals against the tyranny of the majority. That is the same thing that the American Civil Liberties Union is concerned with. Apparently Americans would rather let their rights degrade under the feet of their neighbors than accept that each of us is an individual and should be treated that way. Or that we have rights guaranteed under the Constitution.

It always surprises me that most Americans know so little history. It shouldn’t because every survey says that they don’t, but it still astounds me. History is fascinating. It is astounding, for instance, how Jefferson got past his own thinking about limited government to go out and buy Louisiana. We can only wonder again, what would have happened if two brilliant men, Aaron Burr and Alexander Hamilton, has not been destroyed by a duel. How often are rebels’ abilities honed by the very rulers they are rebelling against: George Washington was a British (colonial) officer at one time. Andrew Johnson angered Abraham Lincoln when he showed up drunk at Abe’s second inaugural. And I had a history professor as a freshman at the University of Montana who shocked us wide-eyed rubes from the small towns (and from some of the bigger ones in Montana), when he referred to one of the European conflicts as the “War of the three Whores.”

History is the story of people and how they act. It is the dirty laundry, the gossip of the ages. Although it is based on Frances Marion, the swamp fox of the Revolution, the movie The Patriot is fiction, but it gives a real feeling for the pressures of the time, and the way war impacts the individuals. The slogan for the Revolution was not “no taxes” but “no taxes without representation” and that is a major change in meaning. That is history.

Tradition is not history. History is based on facts and they can extend for the known duration of the human race. Or they can be a month ago. Tradition is always limited in its views. For instance, we have been fulminating since the 1960s in this country on what makes up a marriage. The idea that people could get together in a commune and have a family in it was challenged by backers of the traditional “nuclear” family. Yet many people don’t realize that tradition is only a few centuries old. If you look at the link under “the history of marriage” on this blog, you realize that same sex marriage has a history that seems almost as long as that of man and woman. And man and woman is a history only because that seems to be the only way to conceive and rear children successfully. Although two female mice recently conceived a child without a male.

So, back to activist courts. In Montana we have had activist courts since we were founded. Most people don’t realize it because they were so used to seeing the courts go along with “the company.” If it wore the semblance of a corporation, it won in our courts. In recent years, our courts have been able to see beyond “the company” to where the right is. But I suspect with all the malarkey about activism in the courts, we may see some change to that in this election.

And the history of this country has been laid down by “activist” courts and many of us, I won’t say all because some people would rather have a dictatorial government, have liked the result, since most of our oxen were gored in one way or the other in the process. Even John Marshall, the great chief justice who laid the groundwork for the federal court system, was an activist in the first days of our country. He laid down the basis for the judicial review of legislation by the courts. And he was appointed by the first President Adams.

The Supreme Court later did some other sharp things that were not popular, that today would have been activism, such as setting out the basis for a national currency rather than a system of individual state currencies. It also ruled that states could not interfere with interstate commerce. It also did some stupid things: it ruled that Congress could not halt the spread of slavery into territories (in the Dred Scott case) and it also ruled in favor of southern Jim Crow laws. But both of those were later reversed. It finally ruled against separate school systems which had resulted in poor educations for both black and white. It prevented school children from being coerced into religious belief. It ruled against Executive Privilege in cases that did not involve the military or government security, which the current activist court has turned over. It has taken the side of the individuals to show displeasure with their government.

Looking at the history of the “activist” Supreme Court, we could say that it has done each time what it thinks would strengthen this country. In the first years, the court ruled for the central government in several key issues; later in the 19th Century it ruled against labor unions (wrongly) and against individuals challenging state governments. At one point it ruled that a corporation is legally a person. In the 20th Century it began the job of moving away from protecting the organization to protecting the rights of the individuals over the rights of those organizations.

Today, the “activist” courts have taken steps against the alienation of one group of people by men in reversed collars or with black books in their hands who stand for organizations that say they speak for a god. Each of them says he wants marriage to be what they say it is. Yet, one of those groups, the catholics, do not recognize a marriage by another group if it concerns one of its members who has been divorced, at least without a fee for an annulment. Yet a marriage is only what its practitioners say it is. Some people say they are without benefit of clergy or state official and they are. No matter what the state says about common law marriages, if a man and a woman file a joint federal income tax return they will have to have a divorce before they can again file separately. And marriage between a man and a woman is becoming rarer. More and more people are living separately.

So our society is moving in the direction of the individual rights which can be circumscribed by the state and federal governments (see the first 10 Amendments and the 14th) only within certain boundaries. We need the “activist” courts to make sure no one oversteps those boundaries.