Thursday, December 25, 2008

...So That It's Forever Broke

I caught the debate over Rick Warren on a clip on Towleroad with Washington Post columnist Jonathan Capehart (here). What really caught my ear was the point about activist judges. I am so tired of conservatives screaming about activist judges. This refrain dates back to the Brown v. Board of Education decision of 1954. The uproar that followed that decision was incredible. White people, particularly in the South, lost their minds. A group of nine Justices changed laws that reflected a long held tradition on the subordination of African Americans, a tradition that attempted to enshrine the inferiority of African Americans. The way of life in white America was attacked. People should have been given an opportunity to vote whether or not blacks should be allowed to go to school with whites, according to their (and the modern day conservative's) philosophy. I have no question as to how that popular vote would have gone during that time period.

So called activist judges have been the saviors of minority groups suffering from the tyranny of the majority, something black folks should recognize with no problem (though when it comes to gay rights, religion seems to cloud the memory quite effectively). The Supreme Court case Loving v. Virginia is another example of "judicial activism." Interestingly, District of Columbia v. Heller is an example of judicial activism. However, because that type of activism was welcomed by conservatives, the decision has not been couched with similar language (U.S. Fourth Circuit judge J. Harvie Wilkinson, in a recent article for the Virginia Law Review, likened the Heller decision to Roe v. Wade in terms of judicial activism, albeit from the conservative perspective, concluding that the results were equally damaging to the interpretation of the U.S. Constitution). Essentially, judicial activism cuts both ways. Conservatives, however, crow the loudest when that activism goes against their particular perspectives. Moreover, the broader media allows them to set the terms of the debate (damned "liberal" media).

I simply want conservatives to be honest with regard to the history of their disdain of "judicial activism." And in order to do so, they will have to be brave enough to stand by the position that the SCOTUS took inappropriate steps in advancing the Civil Rights Movement's aims. Furthermore, and I have heard this before, black folk should have continued to work with state legislatures to advance their aims (for supporters of gay rights, that should sound awfully familiar). The Brown decision is the root of that term, and the derision that supports it. Own it conservatives. Embrace the past as it really was. Don't attempt to make it up as you go along, or mysteriously forget the historical record when it reflects less favorably on your positions. I am sure that Bill Buckley was as horrified by the action taken by the SCOTUS in 1954 as any white Southern contemporary.

I have attempted to break this down so that it's forever broke. I want conservatives to be honest in their positions, and in the history of those positions. The past can be ugly. There are certainly things in the American past that I wish were different, but they aren't. Conservatives need to come to grips with that reality. Good luck, and please stop crowing about "judicial activists." There are too many decisions rendered by judges that fall into that category for that term to be useful any longer. Finally, remember that if a day comes and conservatives are in the minority and pushing for recognition of their rights, they will be praising the court that had the temerity to act on their behalf, thus saving them from a tyrannous majority. Good luck to you, if that day ever comes.


Anonymous said...

You seem to be starting 2009 with a lot of energy! Of course the term “judicial activism” has come to be overused and is approaching meaningless. See this article on Slate for a discussion on activism and how it relates to liberal and conservative judges. I’d like to see some research, but my understanding was always that what got the Right fuming about activist judges was Roe v Wade, not the civil rights movement. After all, the civil rights movement used both judicial and legislative avenues of appeal, whereas the judges in Roe simply “discovered” a right to privacy. This wikipedia entry (not always reliable) says that it was Arthur Schlesinger Jr. (hardly a conservative) that introduced the term in 1947. It also notes that the term was used to oppose New Deal legislation.

It’s a bit ironic to have this conversation as we await the inauguration of the first black president of the country. I have to admit that once I realized that he won, one of my first thoughts was—Great! Will this finally close down the racial industry and their lobbyists? Will the endless complaining stop now? What does it take to prove that the whites are not all secret racists? You want conservatives to “confess” that they weren’t hot on civil rights 50 years ago? In most of the obits I read of Buckley, they noted that he acknowledged that National Review was wrong to oppose some Civil Rights Acts. I’m still waiting for liberals to acknowledge that they were wrong about the benefits of communism.

I find the traditional black/white lens of racial discussion to be so dated. Blacks aren’t even the largest minority anymore. How do Asians and Hispanics fit into the picture? Perhaps more importantly, why have they not scrambled onto the soapboxes demanding things? What are they discussing in their communities? What is working and what is not? These are interesting race questions.

I can’t help thinking that this is a proxy discussion in your mind for what’s happening in California, given that the gay lobby has openly adopted the civil rights movement as their model. If so, I’d be interested in hearing your arguments for why marriage should be redefined, and what other aspects of society should be changed for this interest group?

hscfree said...

Marriage has been redefined over the ages. Also I think that some of the best work on the issue of same sex unions in the early Christian era was done by the late Yale U. prof John Boswell. There has been very little scholarship produced to refute the various findings he put forth. Essentially, same sex couples were found "inappropriate" following revisions of Christian doctrine. Note I didn't say corrections in Christian doctrine. The world knows that Thomas Aquinas was as anti-sex as it comes, and we have suffered from his pronouncements ever since. But don't be fooled into thinking that marriage as we know it in this day and age has not been the result of modifications over an age.

Regarding other racial groups, the histories are different, and it depends on where one happens to be. Out west there is more animus geared toward hispanics and folks in api community. Yet there were tensions that existed between those groups and blacks as well. And black folks had different things to overcome, so the approach to do so was inherently different. There has been greater mobility within those groups over the years; therefore they could move (certainly not without problems) more readily within the broader society than the majority of black folks back in the day. Again, I am not making an argument that ranks oppression. It's simply different.

Finally, just because there is a pending black POTUS does not mean that the problems that have taken years to develop simply will go away when Obama lowers his hand following his completing the oath of office. And Buckley is a start. Helms died perfectly content with his actions in the past, lol.