Judicial activism vs. mob rule

If I never again hear the loaded term "judicial activism," it will be too soon. Throughout our nations' history, that characterization of a given federal court ruling has been shown time and again to be based primarily upon the question of whose ox gets gored.

In the 1930s, liberals screamed judicial activism when the U.S. Supreme Court killed off some of FDR's more imaginative "alphabet agencies." In the 1960s, conservatives got equally rowdy when the rights of the accused were vigorously protected by the Miranda ruling.

These days, it seems that nearly every high court ruling is promptly slandered as the product of someone's judicial activism. "These matters should be left to legislators," is the common refrain from one side or the other. The logical problem with that reaction is that judicial interpretation of laws - relative to the Constitution - is our nation's most essential bulwark against the tyranny of the majority.

If the state legislatures of America were free to do anything they wanted, the rights of Americans would be altered every time we crossed a state line. That's not a nation, that's a confederation. When Americans tried confederation as an alternative to federalism, the results were a disaster. The Constitution was written as an alternative to the Articles of Confederation as a specific remedy the interstate squabbling which, among other things, levied tariffs on other states.

Then, in the short-lived Confederate States of America, dustups between the several sovereign states caused them nearly as much grief as the Army of the Potomac. For instance, Georgia kept its militias home for the first critical months of the war because duly-elected legislators decided Virginia's problems with the United States Army were Virginia's, not Georgia's. They later relented, but in the early days of the Civil War it was Georgia state law that Georgia troops would be permitted to fight the Federals when and if they crossed the Georgia state line, and not a moment sooner. One shudders to think what such an arrangement would have meant for the world in 1941.

Part of the reason the hackneyed and meaningless term "judicial activism" crops up so often in American history is that people have very short memories. The fact of the matter is, there have been cases of supposed judicial activism that unquestionably turned out to be the right thing to do.

Laws forbidding interracial marriage were struck from the books only within my lifetime. There were tens of millions of people, black and white, who believed interracial marriage was wrong, so legislatures encoded that belief into state laws. But those laws violated constitutional guarantees of freedom of association, so the court struck them down. In other words, it was judicial activism that killed off racist laws allowing states to decide who could marry whom based on skin color.

Moreover, there is a built-in remedy for judicial activism. If courts do stray too far from the will of the majority, that remedy is constitutional amendment. Amendments are really hard to adopt because our founding fathers didn't want folks messing around with the country's master legal document unless there was an overwhelming majority who thought it absolutely necessary. Of the hundreds of amendments proposed over the years, fewer than one out of ten has actually gotten further than introduction on the floor of Congress or a state legislature. And that, for better or worse, validates all those court rulings characterized as judicial activism, simply because Americans have not seen fit to exercise our collective right to overturn them.

It's a bitter pill to swallow for supporters of the Equal Rights Amendment, the Balanced Budget Amendment or the Right to Life Amendment, but in the absence of action by the constitutionally mandated super-majority, the statutes and prior rulings those amendments were designed to get around must be allowed to stand. That doesn't mean the Supreme Court was right or the proposed amendments were wrong, it just means that the rule of law has prevailed. And that's far more important than any single issue or statute could ever be.

As distasteful as some U.S. Supreme Court decisions have been (and this week's majority ruling on campaign finance reform, in this writer's opinion, stinks out loud), without judicial interpretation of the Constitution, we're in danger of living in a nation run by a majority with no limits on its power. And that's an incredibly dangerous state of affairs: Remember, a lynch mob is a majority too.

So let's knock off the ceaseless, pointless diatribes against judicial activism; the sole alternative is mob rule. As society changes and grows, our courts act to moderate the capricious will of the majority. Each side is going to win a few and lose a few, and that, in turn, will continue to nurture and sustain the great American tradition of responsible government. The creators of the Constitution who carefully balanced powers between the branches of government, and between state and federal authority, were brilliant, even prescient.

Ask any happily married interracial couple.

Neocons and Arab idols

"Future TV," a popular Arab network in the Holy Land, has a hit show on its hands. Arab Idol is based on the same popular British show that inspired American Idol, and folks throughout southwest Asia are now being treated to images of attractive, talented young people singing their hearts out. Fans by the thousands send in votes for their favorite contestants via the Internet and the keypads of their cell phones. So much for the conventional wisdom that the "Arab street" disdains decadent Western institutions, including, presumably, singing stars and their anti-Islamic Hollywood values. But there's more to Arab Idol's popularity than refutation of clueless conventional wisdom. Some see the show as, heaven help us, a sort of primitive democracy.

In a feature aired on National Public Radio, a Palestinian engineer says of Arab Idol, "At last, Arabs get to vote on something!" Then, he quickly asks the interviewer, "Are you going to quote me? No names, please."

Yikes! This poor man is so used to minding his mouth - lest he run afoul of Yasser Arafat's secret police - that he won't even crack wise when the frame of reference is a silly television show. His fear is especially significant in 2003, a full decade after the last of the great western police states, the U.S.S.R., imploded and disappeared. Since 1900, virtually every nation in Europe and the Western Hemisphere has availed itself of the political and material benefits which accrue to those who embrace government by consent of the governed. Unfortunately, the ideals of egalitarianism and self-rule have yet to gain wide acceptance among our Arab and Persian cousins.

Part of the reason is probably the different schedules on which human cultures grow, become stagnant, decay and are reborn. After challenging Europe for primacy during the Dark Ages of 500 years ago, the great civilizations of Islam fell into their own stages of stagnation and decay. Who knows when their Renaissance will finally begin? One would expect it to be sooner rather than later. After all, radio, the Internet and TV have deeply penetrated these nations with their presentations of the unimaginable freedom and relative prosperity in the Western democracies.

So why haven't the people of the Middle East risen up and taken control of their own governments, as the English began doing at Runnymede and the Americans did conclusively in the final years of the 18th century? They live geographically much closer to Greece, birthplace of democracy, than, say, Canada or Taiwan, but their ideals of freedom and self-determination languish, submerged in a hellbroth of xenophobic dictatorships run by brutes and religious fanatics. All of whom, in turn, are defended by the corps of supposedly progressive freethinkers in Europe and America who would never agree to live in Syria or Iran, but who claim these wretched excuses for governments are just as good as any libertarian democracy. These persons are the spiritual descendants of the cabal of smallbore intellectuals and pseudo-scholars who spent 70 years defending Communism as a "noble experiment," even though precious few of them ever actually lived in a Communist state.

The NeoConservatives of the Bush administration have their work cut out for them, promoting republican democracy in the Middle East. Nations with little or no history of indigenous democratic institutions or the belief systems which support them are going to take a while to become accustomed to the idea that rulers are required to serve the people's interests. Their system has it the other way around; now, the people of the Holy Land are required to serve the interests of the rulers, their childish prejudices and pointless wars.

It would help matters considerably if those who claim democracy is "just one of many equally valid political systems" would quit pretending tyranny is the equal of democracy. No matter how cunningly one deconstructs the proposition, reality has proven otherwise time and time again. That fact, predictably, didn't stop a nutty professor in Florida from asking God to inflict upon American troops "a million Mogadishues" at the beginning of Operation Iraqi Freedom (see "smallbore intellectuals and pseudo-scholars," above).

If and when we all accept the overwhelming historical evidence that democracy and respect for individual rights are universal, not merely Western values, Arabs may finally get the chance to vote on something more important than a television talent show.