All across the nation, "activist judges" are "legislating from the bench" while their liberal compatriots wage "class war." Sound frightening? Well, before you run off in fear of civil liberties or social welfare programs, give a second thought to the language of my first sentence. Such misleading and vacuous sound bites have become the parlance of the day for conservatives throughout the United States. Liberal and progressive citizens, as well as anyone concerned with the depth and honesty of our political and social discourse, should be eager to expose them for the shams they are. These terms do nothing but polarize or stifle meaningful debate simply for the sake of political advantage.
"Judicial activism" is frequently denounced by conservatives who claim the interpretation of the constitution should follow a "strict constructionist" approach that goes in search of the "framers' intent." It is rather interesting where these strict constructionists often end up: with decisions that happily coincide with elements of the conservative social agenda. Among these are recent decisions involving the 11th Amendment. Alden v. Maine and other cases have denied citizens the right to sue their own state governments over unpaid wages and similar injustices. If you have a chance, read the 11th Amendment. It protects states from suits by citizens of other states or foreign nations. It says nothing about an individual not being allowed to sue their own state. Somehow, a conservative majority of the Supreme Court concluded that the "framers' intent" was to disallow suits against one's own state. If that is the case, the framers did a funny job of writing it down, don't you think? Judicial activism, as its critics define it, is done by both conservatives and liberals. The difference is that only when liberals do it is it bad. The reality is that our constitution would not have endured for over 200 years absent judicial decisions that sometimes move beyond the literal text. There is an obvious reason for this.
Alexander Hamilton, a signer of the Constitution who also helped assure the document's ratification, was also the first Treasury Secretary. Despite these accomplishments, I would not seek Hamilton's advice should my computer crash late on the night before this column was due. Nor would I seek his tutelage were I preparing for a duel. The reasons for both should be fairly obvious: Aaron Burr in the case of the latter while Hamilton's death nearly two centuries before the invention of the computer explains the former.
Hamilton's inability to predict the invention of the computer or deduce methods by which one might retrieve a lost file should not be held against him. He was a product of the time in which he lived, limited to deriving knowledge from the experiences and data available within colonial America. Hamilton, being dead, is unlikely to adjust to the times. The Constitution he advocated is, however, a living, breathing document that can adjust. It does this through our nation's courts.
The fruits of these efforts can be found in landmark Supreme Court decisions like Brown v. Board of Education, which ruled segregated schools unconstitutional or more recently Atkins v. Virginia, which declared the execution of a mentally retarded individual to be "cruel and unusual punishment." Such decisions have expanded the freedoms understood to be protected by a document written, ironically enough, by a group of men who were largely slaveholders. These interpretations reveal that, behind the time-conditioned language of the Constitution, is an understanding of justice that can and must be allowed to speak to the present.
The deceptive use of language I have spoken of also extends to our nation's fiscal policies. Denunciation of "class warfare" is the standard response of President Bush and other conservatives to questions regarding his tax cuts for the rich, cutting of social programs, the lack of funding for his education policies and other issues that greatly benefit the already rich at the unwelcome sacrifice of the increasingly insecure and poor. Somehow questioning these policies is "class warfare," while the President's efforts to cut funding for investigating corporate violations of minimum wage laws, Family and Medical Leave mandates, and child-labor laws as he increases the budget for investigating and auditing labor unions is not.
Conservatives would have one think that the advocates of "class warfare" who object to these tax cuts seek to build a socialist state. They ignore the fact that the highest personal income tax rate in the United States, currently 38.6 percent, was 71 percent when President Regan entered office. Twenty years of conservative activism has lowered it to 38.6 percent, accompanied by continual under funding of social welfare programs. This is not class warfare?
Those who advocate for the welfare of working people and the poor are not sparking class warfare - who would want to go to war with people who drive military vehicles like the Hummer? - they are responding to class warfare and seeking social justice. The same is true of judges denounced as "activists." Perhaps this is why we also call them "justices." Attempts to manipulate language for political advantage serve no one. They simply limit freedoms or endanger the impoverished. Individuals of all political stripes should seek to expose them for the empty rhetoric they are.
John Infranca is a theology graduate student. His column appears every other Friday. He can be reached at jinfran1@nd.edu. He is glad this column, with echoes of one of the President's recess judicial appointments, will be published right before a break. How is that for irony?
The views expressed in this column are those of the author and not necessarily those of The Observer.
