Sunday, March 19, 2006

More on Justice Ginsburg

For what ever reason, the conservative hullabaloo about Justice Ginsburg's comments on referencing foreign law has really irritated me, more so than the usual conservative nonsense out of Powerline and the like. Perhaps it's 1984 of "Slavery is Freedom" aspect of this bloviating. For the all the ridiculous screaming about Tyranny On Horizonl, none of these sycophants has one example about how exactly liberal justices are leading us to to tyrannical state. However, Justice O'Connor has warned about how the Republican denigration of the judiciary can lead to dictatorship.

Thinking about the freedoms of the Constitutions as more powerful ideas rather than mere words will only protect against tyranny. Those who advocate literalism of the Constitution do not really mean it has they magically find inherent powers of the President that allow suspension of the Bill of Rights during war time. I'm still looking for the asterisk in the Constitution that says "the 4th amendment does not apply during times of discretionary war." Thinking about the experience of other countries only serves to enrich our ideas about freedom.

Then bloviators always go on to say to how the Court will impose policy choices. The court has only prescribed anything resembling "policy" remedies to address willful and long-running disregard of Constitutional rights. The only example that comes to mind for me is school desegregation.

The best test for conservative judicial philosophy is how it would have handled segregation. If true to originalism, a conservative court have may found nothing wrong with segregation since it had existed for over 80 years even with the 14th amendment so there's an easy argument that segregation allowable under the original intent of the 14th amendment. If any conservatives actually read this, they are sure to howl but consider their zeal to deny homosexuals equal protection under law. It's the same impulse as racial segregation. The only difference is that today open racial bigotry has become socially unacceptable. We can only hope its not too many decades till we can say the same about homophobia.

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