Aug. 7, 2002
The delays and wrangles about President George W. Bush's scores of
unconfirmed judicial nominees highlight the underlying issues between
the two political parties. The Republicans want constitutionalists and
the Democrats want judicial activists.
The term judicial activism came into the popular lexicon because
of the much-criticized decisions of the Earl Warren Court.
Conservatives don't want judges who write their own social and
political opinions into the law, while liberals praise what they call a
"living" Constitution that is constantly updated by liberal justices.
Two federal district court decisions on July 18 in different
states offer a good teaching lesson in the differences between the two
The activist judge, U.S. District Judge Melinda Harmon, ruled that
a Texas state law banning the direct importation of out-of-state wine
to individual consumers is unconstitutional. The constitutionalist
judge, U.S. District Judge James Lawrence King, dismissed a challenge
by felons who were demanding the invalidation of a Florida state law
barring felons from voting.
America's famous 15-year flirtation with Prohibition ended in 1933
with ratification of the 21st Amendment to the U.S. Constitution.
Section 1 repealed national prohibition, and Section 2 permitted state
option: "The transportation or importation into any State, Territory,
or possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
Texas law bans the direct importation of out-of-state wine to
individual consumers. Three Houston wine collectors filed suit in
federal court against the Texas Alcoholic Beverage Commission.
Relying on the Commerce clause, the wine collectors argued that
the Constitution exists to prevent states from discriminating in favor
of in-state and against out-of-state businesses. They said, "There is
no reason that kind of discrimination should be allowed for wine; it's
not allowed for every other product."
But that's exactly what the 21st Amendment does, namely, give
special state-option treatment to "intoxicating beverages." The 21st
Amendment, ratified 144 years after the Commerce Clause, carved out
this special exception.
Ignoring the plain language of the Constitution, Judge Harmon
ruled not on the way the Constitution is, but on the way she thinks it
ought to be. That's what we call judicial activism.
The Florida case produced the opposite result. Florida has a law
that prohibits felons from voting, with the exception that the Governor
and his Cabinet, serving as the state's Clemency Board, have the
discretion to restore voting rights to felons who apply after finishing
their prison time and parole.
The Florida law has been in effect for a century and a half. But
now that elections are so close, the liberals are pushing to corral the
votes of felons, and 37 states allow felons to vote after they complete
The attorneys representing eight Florida felons played the race
card, arguing that the law disproportionately hurts blacks. Although
the original law was passed in 1868, Florida re-enacted felon
disenfranchisement in 1968 when there was no evidence of discriminatory
Judge King dismissed the lawsuit because the U.S. Constitution
does not prohibit Florida from passing and enforcing this law. He
wrote, "It is clear that the First Amendment does not guarantee felons
the right to vote."
Furthermore, the conduct of elections is one of the powers the
Constitution reserves to the states. The only exceptions to state
power to govern elections are the Amendments pertaining to race, sex,
age, and a poll tax.
The bottom-line question that ought to be asked of all judicial
nominees is, Do you believe in ruling on the basis of the Constitution
as it is written, or do you plan to substitute your own social and
Justice William J. Brennan in a 1982 speech revealed the mindset
of liberal activist judges who have convinced themselves that once they
are appointed, they are divinely anointed to rule over lesser mortals.
He praised "the evolution of constitutional doctrine."
Brennan said that in previous times, "the function of law was to
formalize and preserve (accumulated) wisdom," but "over the past 40
years Law has come alive as a living process responsive to changing
human needs." He bragged that the law has become "a moving consensus,"
and that "our constitutional guarantees and the Bill of Rights are
tissue paper bastions if they fail to transcend the printed page."
In June the U.S. Supreme Court gave us a striking current example
of the "evolution" of the so-called "living" Constitution in the pen of
judicial activists. Referring to "polling data," Justice John Paul
Stevens rewrote the Eighth Amendment to outlaw capital punishment for
those with low I.Q. scores based on what he called a "national
Justice Antonin Scalia, in dissent, retorted that the decision
really was based on "nothing but the personal views" of the Justices.
The reason the Democratic Senate is holding up President Bush's
nominees is that Tom Daschle and Patrick Leahy want more judges who
believe in constitutional "evolution."