Monday, June 30, 2008

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...



warpmine said...

Yes and Dred Scott decision should have implications even today. Either it was wrong or should it have been there as precedent.

Very weak kneed indeed.

Mark Levin goes on about all the tyranny in this book Men in Black, a very good read.

As long as the left continues to support the judicial supremacy/tyranny in substitution for real legislative power, our delegation of powers to the three branches of government is useless. When a court decides that it should spoon out the law it puts a crown on itself or perhaps a label as a living deity.

Gunpowder Chronicler said...

Actually, one of the big fallacies of what he wrote was that Supreme Court had ever touched on the individual's right to own a weapon...
Miller actually only touched on an individual's right to own a certain class of weapon (a military style, fully automatic weapon).

Other than that, the Supreme Court had never ruled on the issue at hand, whether the 2nd Amendment was a collective or individual right.

The Supreme Court had only ruled on tangential issue, such as, "Does the Constitution allow for the regulation of the sale, manufacture, and purchase of weapons within a framework of the 2nd Amendment?"

So all his writing about precedent is bunk.

Mighty Skip said...

"...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..."

That is exactly what is going to happen. I had the (un)fortunate opportunity to listen to Justice Stephen Breyer speak at the commencement ceremony for the American University Washington College of Law. Basically saying to all the young J.D.s that it was their personal responsibility to be activists and use the law to manufacture social change.

Big Dog said...

Actually, the Dred Scott decision set the precedent for individual right to bear arms (for those who can't understand the Constitution). In that decision the justices laid this out a sa reason to deny Scott his freedom:
"It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

They were worried he would have the right to keep and bear arms wherever he wanted thus indicating that free men had the right to keep and bear arms as INDIVIDUALS!

Big Dog said...

Thanks for the lead.

Gun Rights DrieE Liberals Crazy

Big Dog said...

That should be DRIVE liberals...