Two guys from the self-styled National Clergy Council stood behind a spare podium in front of the United States Supreme Court in the warm October sun, shouting epithets at Democrats across the plaza in the Senate. "If they want Armageddon, they will get Armageddon!" snarled one of the men, a pastor by the look of the vestment he wore. A sparse group of bored looking reporters recorded the "press conference" and some cableheads pulled the pastor aside for taped Q&A.
I walked up the steps and sat in the shade on a stone bench by one of the twin fountains, and looked across at the Capitol where the body of Rosa Parks lay in state until this morning. On my way to an appointment in a Congressional office building today, my cab had passed the cortege, heading awy from Capitol Hill toward the Metropolitan African Methodist Episcopal Church.
As the pastors packed their portable lectern away and got on a bus, I thought about Rosa Parks and the struggle for civil rights and Brown v. Board of Education - and the lie - the damnable lie that is "strict constructionism."
It is a myth, supported by those who use it as an argument for the judicial activism they admire - judicial activism that supports religious control over public life, the rolling back of government, the reduction of rights. The Constitution was not strictly constructed in the seconds after its adoption and as this country change, it has never been strictly constructed at any part of our history; it has always been interpreted. Any American justice who believes the job of serving on the Supreme Court means attempting an "originalist" archeaology has simply spit the bit, and refused to come to the mark; any justice who takes that line is, in fact, an intellectual coward, a non-entity, a small and narrow intellect.
All laws in a republic are interpreted by the judiciary; this is a simple fact. To say that "this is not what Madison and Hamilton had in mind in the late 18th century" simply because you do not agree with a legislature is the definition of an activist judiciary run amok - a delusional, inbred form of justice, not worthy of the highest bench. JM McKay got it right in a recent post on MyDD:
Deferring to the intent of a handful of long-dead men from a different century doesn't seem a great deal more "democratic" than deferring to a group of judges on the bench today. Is legislating from the grave really better than legislating from the bench?
No, it clearly is not. Strict constructionists and originalists - your lazy-minded types - would not have handed down Brown v. Board of Education; indeed, Antonin Scalia would probably have punted on Marbury v. Madison. Stasis in judicial thought is not what this nation needs, or what our children deserve. In the long run, it is in no one's best interest: liberal, conservative, or the more-frequent mixture of both. We are at heart a progressive nation.
Then again, most of those supporting strict constructionists decry judicial activism; strange then that the justice most likely to vote to strike down the actions of a legislative body among current the current Supremes (with a whopping 65.6% overturn record) is Clarence Thomas.
It was a strange day in Washington - warm for a Halloween, a great American lying in the Rotunda, the Roberts Court getting its first official portrait snapped, and a new face nominated to the mix. Two rows behind me on the shuttle this morning sat Ambassador Joe Wilson, whose family was attacked by the Vice President of the U.S. and his staff during an episode that has become a grim national security scandal. He had done the morning shows in New York and was headed for a lunch-time speech at the National Press Club. You feel, instincitvely, that the Fitzgerald probe is not over; and certainly that's the whisper on Capitol Hill.
On the way back to National, my driver asked about the microphones in front of the Court. Bush picked his new nominee, I told him - guy named Sam Alito from New Jersey, reputation as a strict constructionist. Bush wants a fight, said the cabbie, he needs a fight. Buck up his side.
UPDATE: Steve Cobble gets at what I'm saying this morning in the HuffPo:
By recognizing the power and dignity of Rosa Parks and her movement, Bush & Frist & Alito put the lie to their whole "strict constructionist" rap. Why?
Because if FDR had not broken the back of the strict constructionists with the Warren Court, the movement that owes so much to Rosa Parks would have been stymied.
The U.S. Constitution and the strict constructionists gave us Plessy v. Ferguson, and "separate but equal." It was the Warren Court, those justices who believed in justice over ideology, who believed in a living Constitution rather than a false "strict construction" -- these so-called "activist judges" broke the back of segregation with Brown v. Board of Education. Dr. King, Rosa Parks, SCLC & SNCC built from there, and changed the world.
By going for a photo-op with Rosa Parks, Bush & Frist & Alito impugn the legacy of strict constructionism without saying so, and inadvertently validate the history of the Warren Court.