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.
Abernathy v. IRS
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.
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:
Dreyer v. State of Hawaii
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.
Now we’re making progress, but we know that disempowering the
Federal Edu-crats is not really going to stop the serious lobby
groups like the National Education Association, who can always
reassemble behind the camouflage of state education associations.
In this education revolution, it’s time to let a thousand flowers
bloom:
Beale v. State of New York
Notre Dame graduate and Iraq War veteran Chuck Beale wants to teach
in schools, but doesn’t have any teaching courses under his belt.
Citing the Eighth Amendment, the Court rules that existing teacher
training is cruel and unusual punishment not fit for a dog. Within
a week, 100,000 new teachers come forward, reflecting the rainbow
of America’s experiential greatness. The NEA monolith is
shattered.
And while we’re cleaning house in the schoolyards, maybe it’s
time to disinfect the place with:
Chance v. Los Angeles Board of Education
Citing the first ten words of the Bill of Rights (“Congress shall
make no law respecting an establishment of religion”), the Court
rules that Camille Chance, a single mother atheist, does not have
to subject her daughter Donna to the “religion” of Secularism at
her government school. The Justices hold that the latex birth
control device known as a condom is a religious totem of the
Secularists comparable in its ubiquitous celebration to a cross or
a mezuzah, and therefore has no place in the classroom. In
addition, the Court mandates that all federal programs have six
months to expunge any other books, posters, or items that promote
the Religion of Secularism.
The Earl Warren/Warren Earl Burger era has now entered the
dustbin of palindromes. But are conservatives happy yet? Of course
not — at least not until something is done about the pesky
immigration problem. Fortunately, for that the remedy is:
Tancredo v. Bush
Cowed by talk radio, Congress holds their nose and, with a
veto-proof majority, votes for an innovative piece of legislation
from Rep. Tom Tancredo. Citing Article I Section 8 and Congress’s
“privilege to declare War, grant Letters of Marque and Reprisal,”
Tancredo’s stunt dusts off an obscure, archaic gambit. His bill
will issue up to 100,000 “letters of marque” to deputize the
Minutemen to make arrests at the American border. The Court finds
this approach to be precisely the intent and meaning of the
original text. Illegal immigration is stopped.
Whew! That’s progress! But, for now, just one more ruling,
partly to remind Washington who’s the new boss, and partly to give
these severe, conservative justices an opportunity to show they
have a heart:
Estate of Ted Williams v. Major League
Baseball
The Court observes that by employing eminent domain, government
funding, and public airwaves, Major League Baseball is
unquestionably an enterprise of the states. Accordingly, baseball’s
actions fall under Article I, Section 9 prohibition against any
state enacting laws ex post facto. By changing the rules
of baseball, the career record of Ted Williams in comparison to new
players is being re-judged in an ex post facto manner.
Thus, the “designated hitter” rule is ruled unconstitutional.
Having saved both the country and baseball, the Fantasy Court
breaks for a well-earned Thanksgiving recess.
Judd Magilnick is managing partner of MarketPlace
America, international trade specialists based in Santa Monica,
California.
