[In the previous diary, I wrote:
the majority of my diaries this weekend will revolve around confronting hegemony on three fronts:
(1) Supreme Court nominations & conservative hegemony in law.
(2) The military, the media and the war.
(3) The meltdown and economics.
This is the first dealing with conservative hegemony in law.]
Note that the issue here isn't whether the teacher was out of line or not. There's a difference between challenging a student and ridiculing them that's entirely independent of the content being taught or discussed, and although regulations can always be abused, I see nothing inherently wrong with regulations intended to maintain dignity and civility. But these come nowhere near anything like a First Amendment issue.
No, the issue here is whether a teacher "displaying religious hostility" can even remotely be considered to be "prohibiting the free exercise" of religion, and if so, how this can be maintained with a straight face at the same time that government is distributing funds to "faith-based organizations." How can the former be "prohibiting the free exercise" of religion, while the later is not establishing a religion? The double standard is simply too glaring to be ignored.
And, finally, how can judges possibly have reached such a contradictory state of affairs without engaging in "judicial activism" and "legislating from the bench"?
The answer to all this can only be that all such discourse is fundamentally a sham, intended to provide a veneer of rationality to what is essentially lawlessness enshrined in law.
And, as I said before, it's just par for the course. Indeed, it can well be argued that conservative judicial activism is the norm in American constitutional law. This is not to say that it necessarily occurs blatantly and pervasively, but it is to say that when it does does occur, it is often decisive, far-reaching, and beyond remedy--at least within the framework of constitutional law itself, and often far beyond it.
Consider a few prominent examples:
(1) The Dredd Scott decision held that blacks were not citizens, despite no language to this effect in the Constitution, and decades of their exercising political rights to the contrary. It also went directly contrary to the slaveholder's precious doctrine of "states' rights"--just in case anyone might miss the utter lack of any consistency in the argument being made.
(2) Santa Clara County v. Southern Pacific Railroad, in which it was held that corporations were protected by the 14th Amendment, and
(3) Plessy v. Ferguson which held that African-Americans were not. (Of course, the courts denied that this is what they had done in Plessy, but no sane person can believe them as a matter of fact.)
(4) Bush v. Gore, which held that an unspecifiable class of ballots is entitled to equal protection, but that a specifiable class of voters is not, and that further held that George W. Bush, alone of all the people who ever lived did not have to have standing in order to sue.
Finally, consider the very essence of the conservative narrative complaint--the liberal judicial activists "make law" rather than "interpreting it". Such a formulation, naturally, depends on the fiction that a clear and unambiguous line can be drawn between the two.
However, this fiction is most certainly not just a fiction, but a falsehood. While it's clear that some examples clearly lie on one side or the other of this line--the conservative decisions cited above, for example, all involved making law--it's quite impossible to divide the close cases. Thus, the narrative is necessarily vacuous, and exists for purely political purposes, in order to demonize liberal--or even merely insufficiently rightwing--judges, justices or nominees.
A further demonstration of the bad faith of this narrative is the simple fact that judges are supposed to "make law". As Wikipedia explains, in the entry on common law:
Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.
Common law is law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.[1]
The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.
American law is based on English common law, and thus, as noted above, it is the duty of judges to make law when there is no statute or case law precedent.
I'll have more to say in a followup diary, but this should clearly establish the general points that conservative narratives about liberal "judicial activism" are political in nature, not well founded in fact, and lacking in good faith. They serve a hegemonic function, in that they enable a routine stigmitization of non-conservative legal thought, which in turn supports the consolidation of conservative political power via the court system, under the deceptive guise of apolitical law. |
