Tuesday, December 14, 2004

Judicial Activism and Argument from Tradition, Two Great Tastes That Taste Great Together!

In this article on the esteemed WorldNetDaily, bastion of far-right Christian idiocy, author David N. Bass manages to prove that conservatives don't care about "judicial activism" but only in courts ruling as they would like, and to make the worst attempt at the Argument from Tradition I have ever seen.

Government [in Canada], especially the judiciary, has the final say in all matters,
including marriage... By giving justices and judges, rather than the people
themselves, final say over social change, the judiciary is setting itself up as
a tyrannical beast.
Now, you see, in Canada, the legislature can go to the Supreme Court and ask whether or not possible future legislation would be constitutional or not, unlike in the US, where the legislation must be passed and challenged in order for the Court to rule. In this case, the legislature simply asked the Canadian Supreme Court whether a measure to legalize gay marriage would be constitutional.

The legislature asked. That is, the peoples' chosen representatives asked the Supreme Court if they could legalize gay marriage according to the Canadian constitution. The Court ruled that the legislature could legalize gay marriage. It did not mandate that the legislature do so, however. It left that up to the legislature, the peoples' chosen representatives.

But, because conservatives are outraged whenever any court rules in a way they don't like, Bass comes across with his ridiculous "tyrannical beast" accusation. By not telling the representatives of the people in Canada that they couldn't legalize gay marriage, the Canadian Supreme Court is labeled "tyrannical."

So, in fact, Bass, like other conservatives, doesn't really care about the will of the people. He only cares about gay marriage being kept illegal. If the judiciary rules that gay marriage is legal in opposition to the legislature, the judiciary is "activist" and "ignoring the will of the people." If the judiciary rules that the legislature is free to legalize gay marriage or not, as the people will, then the judiciary is still "activist" and has "final say over social change." Even when it this is patently untrue, as in this case, where the ruling of the Canadian Supreme Court was that the legislature has final say over social change.

Bass then goes on to decry that:

All laws are open to interpretation. The antiquated laws of the past
(meaning marriage between heterosexuals), the court writes, run "contrary to one
of the most fundamental principles of Canadian constitutional interpretation:
that our Constitution is a living tree which, by way of progressive
interpretation, accommodates and addresses the realities of modern life." ... A
"living tree" constitution, as so ridiculously defined by the nine justices of
the Supreme Court of Canada, is really nothing more than an excuse for breaking
down the traditions of Western culture and democracy.

This, my faithful readers (if any) will recognize as just a crappy version of the Argument from Tradition. All laws are open to interpretation. If people like Mr. Bass can put certain laws, by fiat, in a special category where they are not subject to challenge or interpretation, then what would have stopped anti-abolitionists from putting slavery laws in that category, or anti-suffragists from putting laws that prevent women from voting in that category, or those opposed to ending discrimination from putting "separate but equal" laws in that category?

See how easy it is. From the above quote, remove "(meaning marriage between heterosexuals)" and replace it with, (meaning blacks as slaves and whites as slavemasters) or (meaning men as the decision-makers who can vote and women as needing no vote to think the same as her man) or (meaning that the races, black and white, should not mix). It works just as well, doesn't it?

Do you think Bass even realizes that? I doubt it.


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