May 7, 2005
My Activist Judge is Better than Your Activist Judge
By Floyd Johnson
Today there is a growing movement to replace `activist judges' with conservative judges. Evangelical conservatives feel that `activist judges' are promoting a secular nation and are hostile to religion. They are not only advocating putting an end to Senate filibusters, they are even proposing cutting off federal funding for `activist judges.' Born-again Tom DeLay has said as much, "We set up the courts. We can unset the courts. We have the power of the purse."
But when you hear someone complain about `activist judges,' pay attention. This is a matter that could seriously affect you, your pocketbook, your family, and your future. What is an `activist' judge? Strict constitutionalists define any action taken by a court that is not explicitly permitted by our Constitution to be a capricious interpretation of our founders' intentions, and therefore unconstitutional. But before you nod your head affirmatively and mumble "damn right!" you had better think twice about what you are agreeing with. You may find that many of the benefits you and your family currently enjoy were blessed by `activist' justices.
In 1938, President Franklin Roosevelt signed into law America's first minimum wage law - 25 cents an hour, rising to 40 cents an hour over seven years - and requiring time and a half pay for over 40 hours worked in a week. This law, the Fair Labor Standards Act (FLSA), gave us the 40 hour week, overtime pay, and included severe restrictions on child labor. There were howls of protest from business interests. In one of his famous fireside chats the night before the signing, President Roosevelt warned, "Do not let any calamity-howling executive with an income of $1,000 a day tell you that a wage of $11 a week is going to have a disastrous effect on American industry."
During the thirties, the progressive movement sought to protect workers from what many considered the abuses of an unregulated market. But even then, the Supreme Court continued to use laissez-faire economic arguments to strike down federal laws, including signature New Deal legislation. Only after President Roosevelt threatened to pack the Court with justices more deferential to national regulation of the economy did the Court reluctantly agree to let the Fair Labor Standards Act stand. Strict constitutionalists, however, argue that the FLSA is unconstitutional because it violates the 14th Amendment right of private parties to enter into contracts - quoting the provision in the Amendment that no state shall "deprive any person of life, liberty, or property, without due process of law" - contracts being defined as private property by strict constitutionalists.
Capitalizing on the moral indignation of the religious right, there is a resurgence of the conservative movement dubbed the Constitution in Exile movement by appellate court Judge Douglas Ginsburg. According to Ginsburg, this movement would restrict state and federal powers to only those powers that existed before the New Deal. The movement consists of many lawyers, conservative policy group advocates, and judges on appellate courts and even the Supreme Court.
If the Constitutional in Exile movement is eventually successful, then many of the benefits we all enjoy today could be ruled unconstitutional. Not just Roe v. Wade - but benefits that include the 40 hour week, overtime pay, and many others could all be ruled unconstitutional and disappear. Financial institutions such as the SEC, the FSLIC, the FDIC, and the PBGC are also considered unconstitutional by the movement. The truth is that many of the benefits we all take for granted now were once blessed by so-called `activist judges' - judges who broadly interpreted the literal word of the Constitution and balanced it with the implicit intent of our founding fathers and the needs of our society.
The Constitution in Exile movement wants to take America back to the laissez-faire days of a Gilded Age. To the days of unbridled capitalism. To the days when the Robber Barons ran the economy and ruled our nation. They want to overturn all of the New Deal and most of the progressive legislation passed since 1932 governing the workplace, the environment, healthcare, and so on. They want to restore the era of Republican dominance in America from 1896 through the Roaring Twenties - a period that almost ruined this country financially and left many people poor, hungry, and homeless.
Cass Sunstein, a law professor and author of the book, Fundamentally Wrong, has stated that success - as the Constitution in Exile movement defines it - would mean that many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board could be ruled unconstitutional, and that even the Social Security Act would be under constitutional scrutiny. Many in the movement also believe that there should not be independent regulatory commissions such as the Security and Exchange Commission and the Federal Reserve and that portions of the Endangered Species Act and Clean Water Act should be struck down as unconstitutional.
Michael Greve, a scholar for the conservative American Enterprise Institute, is an ardent defender of the Constitution in Exile movement. He has stated that 1937 was an unmitigated disaster resulting in the total judicial abandonment of constitutional limits on government power. He has said, "I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice." And while he does see a role for government in protecting against egregious forms of corruption, all other abuses should be regulated by private agreements between citizens. He added, "I don't think much would be lost if we overturned Federal Wetlands regulations or if we repealed the Endangered Species Act. Greve is particularly happy that Bush has re-nominated William Pryor, the former attorney general of Alabama. He noted that in the Supreme Court case that ultimately invalidated parts of the Violence Against Women Act, Pryor wrote a brief that many in the movement consider brilliant.
A huge political battle looms in the Senate over several of the court candidates re-nominated by the President. The battle already has been joined as the Senate considers eliminating the filibuster. Several of the re-nominated candidates are very sympathetic to the Constitution in Exile movement. In addition to William Pryor, there is Janice Rogers Brown, a California Supreme Court justice who has called 1937, "the triumph of the socialist revolution." Another sympathizer re-nominated is William G. Myers III who has been a lifelong advocate for mining and grazing interests. Myers has criticized the "fallacious belief that the centralized government can promote environmentalism" and has denounced the Endangered Species Act and the Clean Water Act as "regulatory excesses."
But the battle over appellate judges is really only a warm up for the Supreme Court nomination to come. Chief Justice Rehnquist is expected to announce his resignation soon. Rehnquist's retirement will create at least one Senate confirmation hearing for a new Supreme Court Justice, and possibly two. Christopher DeMuth, president of the American Enterprise Institute, is encouraged by the nominees reportedly on the President's short list - a list that contains several candidates broadly sympathetic to the views of the Constitution in Exile movement. DeMuth is especially enthusiastic about the possible candidacy of Michael W. McConnell, an appellate court judge in Denver - a judge that Michael Greve has said would provide "a vision of federalism that looks like the Constitution we once had." Most of the other names on the President's short list have similar qualities. J. Michael Luttig, an appellate court judge in Virginia, is a vigorous proponent of the view that some federal environmental laws exceed Congress's powers to regulate interstate commerce. Another on the short list is John Roberts, a federal judge in Washington, who has also questioned applications of the Endangered Species Act.
It is a troubling paradox that conservatives who continue to denounce liberals for using the courts and `activist judges' to thwart the will of the people in cases involving abortion and gay marriage, now want to use the same method they condemn - using their own `activist judges' to overturn laws they do not like or that do not conform to their religious beliefs.
As we consider all this, we should ask ourselves if we, as modern Americans enjoying the fruits of all the progressive legislation that has been passed since the thirties, "Are we ready to retreat to the free-wheeling, laissez-faire rule of the 1920s - when big business was king and workers were exploited?"
I think not.
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For more information on the Constitution in Exile movement see The Unregulated Offensive, written by Jeffrey Rosen, professor of law at George Washington University appearing in the NY Times Magazine, April 17, 2005, at: http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html?pagewanted=print&position=)
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Floyd Johnson describes himself as a depression-born, unreconstructed FDR-Democrat. He moved to Phoenix from London in 1975 after residing several years in Brussels and London. He received a Masters Degree from Thunderbird - The Garvin School of International Management in Glendale, Arizona in 1981. After 35 years in the computer industry, he was a used and rare book seller in Peoria until his retirement in 2002.
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