Manufactured Outrage

Leftist Erwin Chemerinsky, dean of the newly created University of California, Irvine School of Law is an interesting fellow. Not because he is described as a constitutional law expert, but because of his manufactured outrage when it comes to judicial activism:

The Supreme Court's invalidation of the District of Columbia's handgun ban powerfully shows that the conservative rhetoric about judicial restraint is a lie. In striking down the law, Justice Antonin Scalia's majority opinion, joined by the court's four other most conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners.

If the terms "judicial activism" and "judicial restraint" have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Never before had the Supreme Court found that the Second Amendment bestows on individuals a right to have guns. In fact, in 1939 (and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent and invalidated a law adopted by a popularly elected government.

And the article goes on like this in a relatively uneducated line of thinking.

What's humorous is that the generally accepted view of judicial activism is that such activism creates rights or constitutional violations out of thin air without regard to the Constitution. Regardless of your position on the issues, such creation of rights existed with issues such as abortion and as with gay marriage: courts magically created these rights out of thin air without any Constitutional citation. It's hard to interpret the Second Amendment as it is written and say that such right is being created out.

It seems like a lot of Chemerinsky's beef seems to be that the court in Heller overruled precedent. And I have always found the reliance on precedent to be a very lame-ass, weak-kneed concept. If Courts rely on precedent, particularly when precedent is wrong, that does not help propagate the Constitutional rights of anybody. This is something I wrote about last November in another article regarding guns:

Lasson also completely whiffs on the concept or precedence. Under Lasson's worldview, the Supreme Court's decision in 1939's United States v. Miller is sacrosanct on the issue and cannot be challenged. Of course, there are a number of fallacies with the concept of precedence. Why should a decision be continued to upheld when it is wrong? Under Lasson's warped logic that means that Brown vs. Board should never have been issued as it stood due to the precedent of Plessy v. Ferguson in 1896. And under the same logic, Tileston v. Ullman and Poe v. Ullman would have precluded the decision in 1965's Griswold v. Connecticut...and that case paved the way for Roe v. Wade . I don't hear Lasson arguing the concept of precedence in those cases because the decisions do not match with his leftist worldviews.

And Chemerinsky's argument follows the same predictable mad leftist ranting.

It concerns me that Chemerinsky has been tasked to start a new law school as it's dean, mainly because I worry that there will be more lawyers manufacturing synthetic outrage while misinterpreting the role of the court in society and threatening our basic Constitutional rights as Americans...

Unconstitutionally Ours

This mysteriously was nowhere to be found in the Sun, but the O'Malley administration got cut off at the pass yesterday by the courts:

A Maryland judge yesterday issued a temporary restraining order against Gov. Martin O'Malley's administration, saying the governor acted unconstitutionally in signing an executive order to unionize child care workers.

The order by Judge Dexter M. Thompson Jr. of the Circuit Court for Cecil County bars Mr. O'Malley, a Democrat, from enforcing the executive order he signed last month.

"Continuing to enforce the provisions of ... the executive order would result in immediate, substantial and irreparable harm to the plaintiffs," wrote Judge Thompson. The judge stated he made the ruling because the executive order breeches the separation of powers as detailed in the state constitution and because the independent child care workers should not have a union negotiator forced upon them as a result of the order.

Delegate Michael D. Smigiel Sr., Eastern Shore Republican and an attorney, argued the case.

Mr. Smigiel said he brought the case before the court because the executive branch has been "usurping" the powers of the General Assembly.

"It is a victory for the legislative process and following the [Maryland] Constitution," he also said.

Mr. O'Malley quietly signed two executive orders last month, allowing in-home health care workers and child care providers to form unions.

Mr. Smigiel and others then questioned the constitutionality of the move, saying the governor made an "end-run" around the Assembly by signing the orders.

I'm sure that the same liberals who assail the Bush Administration for allegedly violating the separation of powers between the branches will now chastise the court for not allowing O'Malley to do whatever he wants to do.

Of course, I have no idea what possessed the O'Malley Administration to go around the General Assembly in the first place. I mean, what gives the Executive Branch the unilateral authority to decide who does and does not get to be unionized? Why does he get to decide, and not the people's elected representatives?

Can you imagine if Governor Ehrlich had unilaterally declared Maryland to be a "right-to-work" state? Organized labor would have descended on Annapolis like you wouldn't believe, protesting and filing suit after suit after suit?

If child care workers should get the right to unionize (and I'm not saying they shouldn't) then it needs to be decided in the General Assembly. No matter how strong the Executive Branch is in Maryland, Governor O'Malley is not "The Decider" on issues like this. Perhaps his administration will now respect the separation of powers put forth in our state Constitution....

An Amazing Quote

From an L.A. Times story reprinted in today's Sun on the overturn of the D.C. handgun ban:

A leading gun-control advocate denounced the ruling as "judicial activism at its worst."

"By disregarding 70 years of Supreme Court precedent, two federal judges have negated the democratically expressed will of the people of the District of Columbia," said Paul Helmke, president of the Brady Center to Prevent Handgun Violence.

A liberal activist complaining about an activist court? That's funny.

What Mr. Helmke fails to note is that the strict interpretation of the Constitution cannot, by definition, be "activist." One can only consider a decision as "judicial activism" when the court takes established precedent and creates new Constitutional rights, obligations, or privileges out of thin air. This D.C. decision merely (and correctly) restores the proper interpretation of the Second Amendment.