Readers of a certain age will no doubt fondly remember Mad Magazine of the fifties and early sixties — with its “Scenes We’d Like to See.” There, the writers and illustrators would spoof the taboos of society, fantasizing about what would happen if people “really said and did” what they meant.
Today, we no longer have to worry about repressed opinions — in magazines, on television or anywhere else in the information society. However, at the Supreme Court and particularly amongst its media courtiers, there still exists a taboo that dare not speak its name. It’s called “Activist Conservatism.”
The taboo is most evident in the way judicial analysts structure their highly misleading “tale of the ideological tape.” On one side, you have the liberal Ruth Bader Ginsburg. On the other side of the spectrum, they place conservatives like Justices Scalia and Thomas. (Author’s note to thoughtful readers: Obviously, calling Bader Ginsburg a liberal is like calling Bader-Meinhof a Rotary Club — but work with me here.)
Those who frame this argument would have you believe that the poles of disagreement are based on political philosophy — but their liberal/conservative dichotomy obscures the real battleground. Thanks to great, clear legal analysts like Judge Bork, even lay conservatives now understand that the more critical judicial fault line is between an outcome-based, activist approach and a Constitution-based, outcome-neutral approach.
So — pity “conservatives” like John Roberts, sadly condemned to spend the rest of his life employing his extraordinary brain cells solely in the task of telling liberals what they can’t do with the Constitution. Imagine, if you will, scenes from a real Activist Conservative High Court.
Imagine if conservatives used the Constitution as their sledgehammer. Imagine that they found their penumbras in the Constitution in order to deliver the outcomes they desired. Sure, it would be wrong, but…
IN ORDER TO GET people’s attention, The Court would have to start with a bang.p> Abernathy v. IRS br> Clara Abernathy, secretary at the Heritage Foundation, sues to recover that part of her income taxes that constitute unconstitutional wealth transfer “takings.” The Court rules that, according to the Fifth Amendment, she (and her “dream team” of fifteen attorneys) make an excellent point. Government may no longer take money from one individual simply to give it to someone else. This landmark decision effectively wipes out the Departments of Education, and Health and Human Services. /p>
Already, the Court has made more headway with intrusive government than Ronald Reagan did in eight terms But real conservatives are not satisfied. Sure, they say, scaling back the government is good — but what about social decay? Okay, pick an issue. Gay marriage? That’s easily taken care of with:p> Dreyer v. State of Hawaii br> Court rules that Nancy Dreyer, five-time divorcee from Honolulu, has the right to demand that all “marriage” be exclusively between a man and a woman. Since male homosexuals greatly outnumber lesbians, the lost potential male partners for Ms. Dreyer will not be replaced by the same amount of female suitors. This asymmetry of opportunity violates Ms. Dreyer’s 14th Amendment’s guarantee of equal protection. End of gay marriage.
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