The Obfuscation Report

There’s been a lot of talk these days about “activist” judges vs. “strict constructionists.” I feel for all the talk the vast majority of people don’t have any clue what these terms really mean. So for those of you out there who don’t quite get it here’s a little example.

Let’s pretend that you are the judge in a criminal trial. The defendant is accused of violating a law passed by the legislature. The law is very simple, it states “Thou shalt not kill.” The punishment for violating this law is life in prison without the possibility for parole.

Remember you are the judge, and you must decide if the defendant violated this law.

The first case you see is of a man who killed a cow from a herd he owns so that he could sell the meat. Did he violate the “Thou shalt not kill” statute?

The second case is of a woman who shot her husband in the head. She did this because she caught her husband raping her 8-year-old daughter. Did she violate the “Thou shalt not kill” statute?

The third case is of a soldier who was riding on patrol in Iraq. As he sat in his Humvee he heard something strike the Humvee next to him. Thinking it was a bullet he turned, saw a shape pointing something at him, and fired his rifle killing a 12 year old boy who was holding a walking stick. Did he violate the “Thou shalt not kill” statute?

The final case is of a man who decided he no longer wanted to be married and did not want to pay child support for his newborn child. He came home from work and beat his wife and child to death with a baseball bat. Did he violate the “Thou shalt not kill” statute?

You are the judge. If you are a true strict constructionist then you read the statute and apply it to the facts. As a strict constructionist the law is very clear. Thou shalt not kill means “you will not end life.” But the law doesn’t answer the question: whose life? So in a literal interpretation of this statute a true strict constructionist would have to say that there is no “wiggle room” in this law. As a true strict constructionist you would have to find all four of these people guilty as having violated this law and apply the punishment as prescribed.

The problem with this approach is that it’s stupid. The strict constructionist by definition doesn’t take into account extenuating circumstances, doesn’t bring his or her beliefs or opinions to the table, doesn’t look to the intent of the legislature, doesn’t look to the motivations of the defendants, and surely doesn’t apply his or her own values to the actions of the defendant.

The approach of a strict constructionist is dogmatic. The law is as it reads, and it is presumed that the legislature intended the consequences of passing a law as it is written.

Now, truth be told if this were all that is wrong with the “strict constructionist” approach I might be able to accept it if the conservatives today were actually “strict constructionists.” The problem with the modern conservative movement is that they label anyone who agrees with their philosophy as a “strict constructionist” and anyone they disagree with is labeled an “activist judge.”

The truth is that the modern conservative judge, like Priscilla Owen, is just as likely to bring her own biases and prejudices to the bench as a so-called liberal judge. The differences are in what biases and prejudices they each bring to the bench.

The problem today is that the Republicans and W have been bringing in judges who bring a particular bias to the bench. They are almost always biased in favor of Evangelical Christianity and Evangelical Christian principles when it comes to social issues (abortion, gay marriage, etc.) In addition they are almost always biased in favor of big business when it comes to economic and trade issues. (Think Enron and Halliburton.)

So if you want a judicial system that takes its cues from James Dobson and Pat Robertson and looks to Kenneth Lay for how to run a business… continue to support W and the Republican agenda.

Or maybe it’s time to look for another option.