Monday, August 16, 2004

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.


Blogger Jill said...

"I am so tired of having to define people by what goes on between their waists and their knees."

i've never heard it said better.

3:07 PM  
Blogger David Summerlin said...

Excellent and interesting post, Chuck. Hope you don't mind if I add some thoughts:
I confess I am among many Americans who know less history than I should. When I was in grade school in Texas, my history teacher was also in charge of the cheerleading squad. She would often spend the class period gossiping about soap opera plots with the girls and telling racist jokes. We were expected to memorize names and dates, on which we would be tested.
In college I was fortunate to have a brilliant and captivating man, Tom Crow, teach my courses in art history, and that's probably the first time I realized that history has surprisingly little to do with dates and names. History is a conversation, often an argument. This is because dates and names are utterly dead until you apply elements of causality, which involves judgment (not just: "this happened," but: "this happened because..."). Some of the finest and most interesting people I've come across in the last 15 years were historians. I'm still working on catching up for so many lost years.
Regarding the definition of people according to what happens between the waist and knees: I'm sure someone as thoughtful as you is aware that gay people themselves rarely subscribe to this definition, no more than straight people define themselves by their own acts of coitus. Rather, it is our enemies who seemingly cannot shake the mental imagery of "what we do," and therefore define us by things that can be "kept behind closed doors." Of course, I'm happy to oblige my enemies in developing a crystal clear image of "what I do." Those who see physical acts of love as shameful probably need some therapy.
The concept of "sexual identity" is relatively new, about contemporary with the concept of "personality." But just as "personality" isn't defined solely by, for example, how someone behaves in a work environment, neither is "sexual identity" defined by how someone fucks. I would be gay even were I still a virgin and chose a life of celibacy. And "sexual identity" needn't go hand in hand with "identity politics," though it frequently does.
Regarding activist judges: I find it most telling that those whose panties are in a twist over judicial activism are the ones who are attempting to pack the federal courts with judges who are more blatant activists than any example history can provide. Take the example of Priscilla Owen, the Bush nominee who has been criticized even by her ultra-right peers as being guilty of "unconsionable acts of judicial activism" by refusing to uphold the standard of judicial bypass regarding parental consent for a minor's abortion.
Owen openly rejects precedent when she disagrees with it, and even says as much in her opinions.
But there's something catchy about the phrase "activist judges." It has become one of those talking points in the echo chamber. If you hear it, you can bet it's a rallying cry from the extreme right. It doesn't mean "activist judges," it means "judges who uphold laws that offend our small-minded sensibilities." If you want to find a judge who legislates from the bench, there's a good chance you'll find most of them on the extreme right. Just look at Bush's nominees to find your activist judges. He's busy trying to pack all 13 districts, and we're in serious trouble if he succeeds. What a wretched, horrible man.
My media law professor and continuing friend and consultant once said the Supreme Court often seems to rule how it wants, then finds enough precedent to back it up. She admits that's a pretty cynical way to view the process, but it contains more than a little truth, as your citation of the court's history shows.
Two Supreme Court decisions that I believe ultimately have to be reversed if we are to survive: "corporations are persons," and "money is speech." In the era of neo-liberal globalization and privatization, those two principles alone may quickly spiral toward a logical extreme of corruption and greed that could actually spell the bloody collapse of our society.

5:39 PM  
Blogger Chuck Rightmire said...

David: Great. I agree with you. I think that we have to get rid of the concept of corporation as a person. Its members should be allowed to support efforts to get laws changed if they can, but no corporation should be allowed to pour money into an election issue, such as the mining company has done in its effort to repeal our cyanide mining ban.

I also worry that we are moving into a world where multinational corporations will become the de facto government and control the lives of all of us more so than they do now. We keep hearing how giant corporations gain from economies of scale, but so often those economies are there because they have the power to break unions and to pay workers less.

8:32 PM  
Blogger bedrocktruth said...

Excellent post, Chuck. I don't agree with some of it but it's too well done to argue with........

11:11 AM  
Blogger Eric Coobs said...

Chuck - you started rambling a little bit there, and I missed something.

Exactly what activist judge is 'defining' people by what's going on between their waist & their knees?

6:52 PM  
Blogger Chuck Rightmire said...

Eric: Activist judges aren't doing it so much as other people are. We seem so concerned with sexuality in this society that we can't focus on anything else when it comes to individuals. The activist judges are those who look beyond that to see the person and the institution. That's how it fits here.

7:32 PM  
Blogger The Liberal Avenger said...

"Activist Judge" is Republican code for "A judge whose ruling from the bench we [conservatives] disagree with."

It was "activist judges" in Massachusetts who agreed that Massachusetts state law did not prohibit same-sex marriage between residents of Massachusetts.

Judges from the same court, however, who later upheld the decision not to allow same-sex marriage for non-residents have been hailed as "heroes."

11:44 AM  
Blogger NT said...

I saw you commented on my blog, so I'd thought I would return the favor.

In the current political landscape, many decisions in the legislative and executive branches of federal and state governments are based on short-term political gains. It is important to have officials, whether they be judges or politicians, who make decisions based on long term benefits and the ideals laid out in the Constitution.

It is not the duty of a judge to make decisions based on what may be the will of the people at the time. Judges must make decisions based on their own interpretation of the law.

I imagine that if a vote to integrate public schools was taken in 1954, it probably wouldn't have passed. Thankfully, the Supreme Court made their decision concerning "Brown vs. Board of Education" based on the 14th Amendment and the guiding principles of this country, not on the popular sentiment of white voters of that time. Today, we do not consider these Justices to be "activist judges".

There are plenty of elected officials who vote in accordance with popular sentiment. We should feel comfort in the fact that we have judges who make decisions based on law and principle.

11:05 PM  
Blogger Chuck Rightmire said...

You're more than welcome. That's a perceptive post and probably says better than I did what I meant.

12:12 AM  
Blogger David said...

You make a great case - but conservatives may pack the court. If we must rely on judges to change the laws, we can expect problems sooner or later - although not necessarily problems worse than bad laws.

6:09 PM  
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