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Jewish World Review Dec. 18, 2000 / 21 Kislev 5761

Don Feder

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Libs discover judicial activism -- IN PERHAPS the supreme irony of the month-long legal olympics to determine the outcome of the presidential election, last week, liberals were lamenting judicial activism, defending states rights and insisting, "Just because the Supreme Court says something is unconstitutional, that doesn't make it so."

For years, they've been telling us the opposite: That the Constitution means whatever a majority of the court says its means, even if their interpretation is contrary to the document's clear meaning and the Founders' intent.

States rights? -- the concept is as archaic as the law of primogeniture, they insisted. "Judicial activism" was dismissed as a right-wing fantasy meant to divert the courts from their divinely ordained function of protecting civil liberties.

They're having second thoughts. "Bush Prevails. By Single Vote, Justices End Recount," whined the front-page headline in Wednesday's New York Times. But Stenberg v. Carhart, handed down in June, which overturned the laws of 27 states banning partial-birth abortions, was also decided by a single vote. This was based on a reading of the First Amendment so creative that Justice Stephen Breyer's majority opinion deserves a Nobel Prize for literature.

Of course, the liberals got it wrong again. Tuesday's Supreme Court decision was anti-judicial activism -- a move to restrain a panel of black-robed politicians who'd turned their courtroom into a legislative chamber.

The Constitution gives Florida's legislature -- not its courts -- the power to determine how electors are chosen. The state's election law provides a deadline for certifying votes (that was nullified by the Florida Supreme Court in November). It allows manual recounts under specific circumstances that had not been met.

The Florida court's majority decision -- overruling a state circuit court, awarding hundreds of votes to Vice President Al Gore and ordering selective hand recounts -- was too much for three of the seven justices, all Democratic appointees.

In a scathing dissent, Chief Justice Charles Wells charged the majority's decision, "has no foundation in the law of Florida as it existed on November 7, 2000, or at any time until the issuance of this opinion."

By a bare majority, the high court prevented its Florida counterpart from making Gore president by fiat.

However, on those frequent occasions when the Supreme Court's swing votes have swung the wrong way, the court has engaged in activism every bit as outrageous.

They have barred state voters from limiting congressional terms. A voter-enacted amendment to the Colorado constitution pre-empting gay rights was overturned on the grounds that it was motivated by "animus" toward homosexuals (in violation of the Constitution's anti-animus clause?).

A nonsectarian prayer at graduation and student-led invocations at high-school football games are tantamount to the establishment of a national church, the judicial left held.

Lower federal courts have thrown out referenda making English Arizona's official language and preventing illegal aliens from receiving tax-funded services in California.

Last week, the U.S. Court of Appeals for the Sixth Circuit decided that Cleveland's voucher program -- by which 4,000 inner-city kids are given the means to escape the Arctic wastes of public education -- is unconstitutional because some of the funding goes to religious schools. A federal judge in Detroit determined the University of Michigan's admissions plan, which awards a 20-point bonus (on a 150-point scale) to minority applicants, is perfectly constitutional, its blatant racism notwithstanding.

Vermont's Supreme Court found a right to gay marriage in the state's 18th-century constitution, and the supreme court of New Hampshire overturned that state's system of funding education on equally spurious grounds.

For decades, justices and judges have been merrily usurping the authority of legislatures, overriding the will of the electorate and generally giving democracy a kick in the backside -- all to liberal acclaim, because it's the only way to enact the more radical components of the left's social agenda.

And now they have the gall to gripe about justices interceding in an election. Well, my friends, live by the court, die by the court.

JWR contributing columnist Don Feder's latest books are Who is afraid of the Religious Right? ($15.95) and A Jewish conservative looks at pagan America ($9.95). To receive an autographed copy, send a check or money order to: Don Feder, The Boston Herald, 1 Herald Sq., Boston, Mass. 02106. Doing so will help fund JWR, if so noted. He is also available as a guest speaker. To comment on this column please click here.


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© 2000, Creators Syndicate