Another Perspective

Somewhere Over the Penumbra

Supreme Court "scenes we'd like to see."

By 9.13.05

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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.

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About the Author
Judd Magilnick lives in exile in Santa Monica, California.