OK, I Lied

I really do not feel like commenting on the news, but (crosses fingers) this doesn't really count as "news."

Dale Carpenter at Volokh Conspiracy, via Andrew Sullivan.

What bothers me about Carpenter's post (not the article itself) is the use of terms such as "judicial activism" which have not been defined, not only not to my satisfaction, but at all. (Same category as "Marriage is under attack!" By who?)

My problem stems from a very basic assumption that I think is a false assumption. It is generally claimed, particularly in regard to social policy decisions, that decisions such as Lawrence or Goodridge are "judicial activism" in that the courts are legislating from the bench. I fail to see the validity of this statement: the courts have found that laws in place violate constitutional guarantees of individual rights. This is an example of the courts doing their job: interpretation of the law against the fundamental principles of the Constitution. Strangely enough, when this happens, more often than not it upsets the status quo. I'll be damned -- how could that happen?

In both cases cited above, the courts were not "legislating," they were simply telling the legislatures that current law was unconstitutional. (Please, please do not try to tell me that legislators are careful about the constitutional ramifications of bills that they introduce. Bullshit.) In the case of Lawrence, the remedy was simply vacating the law -- there is no alternative method of redress in such cases, and the state was unable -- and will forever be unable -- to come up with a compelling, rational reason for such interference in the personal decisions of private citizens.

In the case of Goodridge, the court did allow the legislature a grace period to come up with something, which the legislature failed to do. It's instructive that what the legislature did come up with ultimately was not legislation either validating same-sex marriage or an alternative form of recognition for same-sex relationships, but a constitutional amendment barring same-sex marriage, which to me is symptomatic of the mindset in play here: if something that the extreme right wing wants violates the constitution, change the constitution. Sullivan has a good take on it.

It's all about assumptions and the way that agenda-driven statements become the assumptions of debate. The forces of authoritarianism seem to have an unbeatable strategy here: just keep repeating it, and eventually it's true. I don't know if you have to be really clever or really stupid to participate in something like that.