"Wide Liberty"

Pericles over at Daily Kos does it yet again with an in-depth analysis of the myth of "activist judges" and how we can start reframing the debate. He puts forth the very simple concept of the Constitution that I think gets lost or forgotten by most of us (me included) when we contemplate and argue the Constitution*, i.e., that the Constitution isn't meant to delineate what rights the people have, but rather, what authority the government has and the requirements the government must pass in order to prove it has the authority to infringe on the assumed rights of the people. Put more simply, the people of the United States are implicitly assumed to have all God-given rights to start -- the burden is therefore on the government to prove its authority in restricting or limiting those rights, not on the people to defend them.

From this idea derives concepts like the right to privacy that aren't explicitly stated in the Constitution, from which flows so many important rulings on everything from a woman's right to choose to striking down the anti-miscegenation laws that existed until very recently in many states. These rulings speak to the heart of what the Founders intended when they created the Constitution and they're the key to understanding both how our judiciary is meant to work and how to turn the manufactured threat of "activist judges" back to our advantage.

*(Alongside your copy of The Declaration of Independence, The United States Constitution, and The Bill of Rights, should be a very well-worn copy of The Federalist Papers.)

No comments: