Thursday, July 07, 2005
Yale law school professor, Paul Gewirtz wrote an op-ed piece in Wednesday's New York Times that tried to measure, quantify and explain what is a judicial "activist". In the article titled, So Who are the Activists?, Gewirtz and Yale law school graduate Chad Holder tried to figure out what is an activist by asking, "how often has each justice voted to strike down a law passed by Congress?". Gewirtz has conspicuously ignored other methods in which Supreme Court justices can be "activists."
Trying to define judicial activism by counting how many times a Congressional law was struck down is either naive, at best, or intellectually dishonest, at worst. Of course, the article was published and appeared on the popular "New York Times Most E-Mailed Articles" list because noteworthy conservative Supreme Court justices were deemed to be the "most activist".
However, there is a very clear and different way to define activist judges. Conservatives who worry about the handling and treatment of the U.S. Constitution feel that judges are activists when they use personal beliefs or political motives to overturn precedents or fabricate constitutional rights out of thin air.
Examine the famous Supreme Court case, Griswold v. Connecticut. This was the case decided in 1965 that lay the groundwork for Roe v. Wade, decided less than a decade later. While "Griswold" is remembered for invalidating a Connecticut law that prohibited use of contraception by married couples, the Supreme Court arrived at that decision by deciding if found a "right of privacy" in the "penumbras" of the Bill of Rights. Therefore, while there is no provision in the Constitution and no amendment that declares a "right of privacy", the Griswold court decided for itself that such a right existed.
Now, "Griswold" is a decision that struck down a state law but it had many implications for future Supreme Court decisions and laws that were to be enacted. The case does not fit in Gewirtz's and Holder's calculation, one that is self-described as a "reasonably objective and quantifiable measure."
Professor Gewirtz and Mr. Holder fail to explain "judicial activism" by only looking at the Congressional laws that are struck down. In many cases it is understandable for justices to "act" in striking down Congressional statutes. The "activism" that both partisans of both sides speak of is a way in which justices are deliberating "out-of-bounds" in an inappropriate manner.
The definition of a judicial "activist" is when a judge uses means to justify the ends by failing to look at the way the constitution is written and instead uses personal beliefs and goals to manufacture a desired outcome.
This was an excellent, moving speech by London Mayor Ken Livingstone. He perfectly summed up what it means to live in the West and how these fanatical terrorists will fail in their futile endeavor.
This speech will be forever remembered as the right choice of words for how Western Civilization defended itself during the War on Terror.
[FT.com]: I want to say one thing specifically to the world today. This was not a terrorist attack against the mighty and the powerful. It was not aimed at Presidents or Prime Ministers. It was aimed at ordinary, working-class Londoners, black and white, Muslim and Christian, Hindu and Jew, young and old. It was an indiscriminate attempt to slaughter, irrespective of any considerations for age, for class, for religion, or whatever.
That isn’t an ideology, it isn’t even a perverted faith - it is just an indiscriminate attempt at mass murder and we know what the objective is. They seek to divide Londoners. They seek to turn Londoners against each other. I said yesterday to the International Olympic Committee, that the city of London is the greatest in the world, because everybody lives side by side in harmony. Londoners will not be divided by this cowardly attack. They will stand together in solidarity alongside those who have been injured and those who have been bereaved and that is why I’m proud to be the mayor of that city.
Finally, I wish to speak directly to those who came to London today to take life.
I know that you personally do not fear giving up your own life in order to take others - that is why you are so dangerous. But I know you fear that you may fail in your long-term objective to destroy our free society and I can show you why you will fail.
In the days that follow look at our airports, look at our sea ports and look at our railway stations and, even after your cowardly attack, you will see that people from the rest of Britain, people from around the world will arrive in London to become Londoners and to fulfil their dreams and achieve their potential.
They choose to come to London, as so many have come before because they come to be free, they come to live the life they choose, they come to be able to be themselves. They flee you because you tell them how they should live. They don’t want that and nothing you do, however many of us you kill, will stop that flight to our city where freedom is strong and where people can live in harmony with one another. Whatever you do, however many you kill, you will fail.”
Ken Livingstone has made quite a career of making controversial statements, appearing in public with dishonorable characters and speaking out against the war effort to liberate Iraq. Maybe his words indicate that he has seen the light and recognizes what Western civilization must fight for. We shall see...
Read the whole speech here, FT.com / News in depth / Terror - Text of statement delivered by Ken Livingstone
Robert Tumminello, a New Yorker living in London has a blog called EXPAT YANK.
He has extensive coverage, analysis and news (from a local perspective) on what happened today in London. Here is some of his excellent posts on what is going on in the City...
Check out Robert's informative blog.