>Judicial activism has been historically one of the PRIME EVIL forces in
>American society, from Dred Scott through the Civil Rights Cases through
>Lochner and its progeny.
-Come on, Nathan, you are so on this kick about judicial activism you would -attribute everything but the devil himself to it. Dred Scott was no instance -of judicial activism. The bloody Constitution had a 3/5 clause, a slave -fugitive clause and allowed the international slave trade to operate in the -US for a number of decades. When Taney said the enslaved African-American -"has no rights the white man is bound to respect" he was as thoroughly based -in the bloody text of the bloody pre-Civil War Constitution as any Supreme -Court decision has even been!
Much as I love quoting Taney for the white supremacist origins of the US Constitutuion, there is little question that no one intended the Constitution to allow the federal government to be able to force slavery back into non-slave states, which is what Dred Scott did. Yes, the Constitute was a horrible compromise to allow the continuation of slavery in states where people wanted it, but Dred Scott and Prigg were incredible judicial overreach by the Supreme Court. And the result was a Civil War.
And it was without question judicial activism by the definitions I've made, since it overturned both state and federal law in favor of a completely new rule on the status of slaves in free states. You can argue that it was accurate originalist activism, but it was activism nonetheless.
And yes, the imposition of slavery and forcing the Civil War, the gutting of Reconstruction, the suppression of labor unions and progressive legislation - this is the prime legacy of the Supreme Court for the first 150 years of this country. I think it is completely accurate to see the Supreme Court as probably the worst, most reactionary institution in the history of the United States.
-- Nathan Newman