Sunday, October 09, 2005
Stupidity in the Ivory Tower
Here's a letter to the editor in today's NY Times.
To the Editor:
Activism, best understood as a court overturning legislation, may well be bad social policy, from either the right or the left. But overturning legislation because of a court's reading of the Commerce Clause is quite different from doing so because the legislation conflicts with the Bill of Rights.
The Supreme Court is designated to uphold exactly the individual rights Nicholas D. Kristof lists, including "barring school prayer, protecting protesters who used four-letter words, guaranteeing lawyers for criminal defendants, and securing a right to privacy that protected contraception and abortion," because the majoritarian "political process" would not do so.
These decisions are not the result of activism. They are the result of constitutionalism.Joseph P. Tomain
Cincinnati, Oct. 4, 2005
The writer is emeritus dean of the University of Cincinnati College of Law
What the writer doesn't understand, or chooses to ignore, is that the issues he listed only conflict with the Bill of Rights because a majority of of nine Supreme Court Justices said so. Nothing he listed expressly violates anything in the Bill of Rights.
School prayer only violates the 1st Amendment if you say that allowing prayer in school establishes a national religion. Banning abortion or contraceptions only violates the, well, it doesn't violate anything specificly, but it violates the Penumbras and Emanations in the Bill of Rights. (whatever the heck that means)
The writer pooh poohs turning over legislation because of a court's reading of the Commerce Clause, but overturning such legislation has only been done when the activity that Congress tries to regulate has nothing to do with interstate commerce at all. When the Supreme Court said that Congress wasn't allowed to regulate firearms near a school, the Court wasn't legislating; it was telling Congress- you have no authority to pass such a law based on the Commerce Clause, as guns near a school have nothing do with commerce, no matter how you frame it.
Hey, maybe I should be a dean.
As an addition... the Constitution (if one actually reads it) tends to look favorably on issues such as prayer, while negatively on issues such as swearing and the right to murder a child. It's interesting how he words 'protecting individual rights' such as barring school prayer. It's 'offensive' to pray in schools, because a minority don't believe in God; but it's not offensive to murder or swear, which a majority find repulsive. Hypocrite.