Wednesday, March 26, 2008

Now who's the "activist" judge?

Everyone's heard about the Supreme Court's recent ruling in Medellin vs Texas:

The Supreme Court ruled that [treaties] are binding only if the treaty explicitly says so or if there is legislation to make that clear. For all of American history, many treaties have been deemed to be what is called "self-executing," meaning that their provisions are automatically binding. But not all treaties fall into this category. The Supreme Court's ruling set a bright line for which treaties are self-executing — namely, those that explicitly say so or have accompanying legislation that says so.

The court said the president, acting on his own, cannot make a treaty binding on the states.

Every time the Court does something the right wing hates, they all start yammering about activist judges, saying that the job of the Supreme Court isn't to interpret law. The term "strict constructionist" is used for conservative judges like Scalia, Thomas and Alito, although none of them claim the label for themselves (apparently they think of themselves as textualists or originalists). The idea is that the Court shouldn't be reading meaning into the constitution that isn't explicitly spelled out, such as a right to privacy. Of course this is bullshit. The wingnuts are fine with arguments supporting expansive presidential powers based on nothing more than this short sentence "The President shall be Commander in Chief of the Army and Navy of the United States". I don't see anything in there about a state secrets privilege, do you?

I do believe that the constitution must be interpreted, and that it was designed to be interpreted. But to get back to the case at hand, I don't see a lot of wiggle room in this language - "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." How anyone can read that sentence, from Article 6 of the Constituion, and come away thinking that treaties are not self-executing is beyond me. Treaties made under authority of the United States shall be the supreme law of the land, judges in every state shall be bound thereby, the laws of any state to the contrary notwithstanding. I think that's quite a "bright line" all by itself. I don't see anything there about requiring explicit language or federal legislation.

Doesn't this really put the lie to any claim the conservative judges have on textualism or originalism or even constructionism? They're just playing it by ear and according to their own political biases, the same as every other judge.

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