Jewish World Review July 21, 2005 / 14 Tammuz, 5765

Thomas Sowell

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Calculated confusion | Those who want to see judges who will apply the law instead of imposing their own policies face not only political obstruction to the appointment of such judges but also calculated confusion about the very words used in discussing what is at issue.

Judges who impose their own preferences, instead of following the law as it is written, have long been known as "judicial activists" while those who carry out the law, instead of rewriting it to suit themselves, have been said to be following the "original intent" of the law.

But now a massive effort to muddy the waters has been launched by those who want judges who will continue to impose the liberal agenda from the bench. Words like "activists" and "intent" are being twisted beyond recognition.

Senator Patrick Leahy has redefined "activist" judges to make the least activist Justices on the Supreme Court — Antonin Scalia and Clarence Thomas — suddenly activists by his new definition.

Senator Leahy has said: "The two most activist judges we have right now are Justice Thomas and Justice Scalia, who have struck down and thus written laws of their own in place of congressional laws more than anybody else on the current Supreme Court."

One of the major functions of the Supreme Court for more than two centuries has been to strike down acts of Congress, the President, or the lower courts when any of these exceed the authority granted to them by the Constitution. Calling this "judicial activism" is playing games with words and befogging the real issues.

When Justices Scalia and Thomas enforce the limits set by the Constitution, that is not writing "their own new laws," no matter what Senator Leahy claims.

Those who are writing their own new laws are people like Justice John Paul Stevens, who arbitrarily expanded the Constitution's authorization of government taking of private property for "public use" to allow the taking of private property for a "public purpose" — which can be anything under the sun.

It is one thing to allow the government to take land needed to build a military base or a dam and something very different to allow the government to bulldoze people's homes to turn the land over to a private developer to build casinos or shopping malls.

Liberal law professors have joined in the redefining of words. One has given a numerical meaning to "judicial activism" by counting how many laws particular Justices have declared unconstitutional. As Mark Twain said, there are three kinds of lies — lies, damned lies, and statistics.

Another law professor, Stanley Fish of Florida International University, likewise befogs the obvious with elegant nonsense.

Those who try to follow the "original intent" of the Constitution cannot do so, according to Professor Fish, because "the author's intent" cannot be discerned, "so the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention."

Clever, but no cigar.

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While the phrase "original intent" has been used as a loose label for the philosophy of judges who believe in sticking to the law as it is written, judges with this philosophy have been very explicit, for more than a century, that they did not — repeat, not — mean getting inside the heads of those who wrote the constitution.

Justice Oliver Wendell Holmes said it in plain English, that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."

Such contemporary followers of Holmes as Judge Robert Bork have said the same thing in different words. More important, nobody ever voted on what was in the back of someone else's mind. They voted on the plain meaning of obvious words.

There is no confusion between the government's taking land for its own use and seizing land to turn it over to somebody else. The only confusion is the calculated confusion of the partisans of judicial activists.

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