The verbal virtuosity is breathtaking. With just a new meaning to an old phrase, reality is turned upside down. Those who oppose letting government actions exceed the bounds of the Constitution-- justices like Antonin Scalia and Clarence Thomas-- are now called "judicial activists." It is a verbal coup.
Not only politicians like Senator Patrick Leahy, but also law professors like Cass Sunstein and many in the media, measure how much of a judicial activist a judge is by how many laws that judge has declared unconstitutional. Professor Sunstein, incidentally, is among those being mentioned as a possible nominee for a post on the Supreme Court.
When the Supreme Court in 1995 declared that carrying a gun near a school was not "interstate commerce," there was consternation and outrage in the liberal press because previous decisions of the Supreme Court in years past had allowed Congress to legislate on virtually anything it wanted to by saying that it was exercising its authority to regulate interstate commerce.
When the Supreme Court decided by a narrow 5 to 4 vote that carrying a gun near a school was not interstate commerce, it was saying something that most people would consider too obvious for words. But it was considered outrageous that the Supreme Court recognized the obvious and refused to rubberstamp the sophistry that allowed Congress to pass laws dealing with things that the Constitution never authorized it to deal with.
Incidentally, carrying a gun near a school was something that states had the authority to deal with, and the great majority of states had already banned it.
What is at stake in Supreme Court nominations is the power of the federal government. "Empathy" is just camouflage, a soothing word for those who do not look beyond nice-sounding rhetoric.
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