>Doug,
> I don't think reactionaries have just used the courts to block political
>
>reforms. Rather, there is a tradition of conservative judicial activism
>which has been rather creative in using the law to enforce ruling class
>ideas.
This is true: the best example is Lochnerism, the doctrine of economic substantive due process, in Lochner v. NY, standing for the proposition that the legislature ciuld not regulate the economy because that interfered with freedom of contract. This particular doctrine was overturned in the 1930s. Today, the Renquist court uses the New Federalsim and its 11th Amendment jurisprudence actively to similar ends. The 11A, extended nontextually in the 1890s to preclude lawsuits against the government, has recently been usedto limit the reach of discrimination law and the ability of the states to regulate lots of things. On the horizon if Bush gets another appointment to the Court: a Takings Clause jurisprudence tahtw ill make Lochnerism look nice.
Think of the way a decision like Plessy Vs. Ferguson conjured out
>of
>nothing the idea of "seperate but equal" as a rationale for Jim Crow.
Actually, Plessy is an awful case, but the idae of seperate but equal probably represented the consensus view of the framers of the 14th Amendment,w how ere as cleas athey could be in the debates that they did not favor social or political equality, just civil rights. To them, equal protection of the laws meant that Blacks could get some protection from the laws. So if you are an originalist, Plessy,a nd indeed Dred Scott, are arguably not bad law. That is one more reason not be an originalist.
(As
>I
>understand it, Jim Crow was itself a novel phenonomeon in the 1870s and
>1880s).
Well . . . It was a continuatioon of slavery, briefly interrupted by radical reconstruction.
Another example would be how conservative justice applied the 14th
>
>amendment to protect corporations, despite the fact that this goes against
>
>the "original intent" of the law.
That is not so obvious. Treating corporations as persons was a novel extension of the law, but the framers of the 14th amendment were strong property rights men, and wouldn't have objected to the idea. And indeed, didn't.
My point is that liberals and leftist
>don't need to masochistically berate themselves for judicial activism,
>when
>in fact the larger history of the U.S. is that the law is usually on the
>side of the ruling class.
Even those of us leftists and liberals like Nathan and me who argue very strong for judicial restraint (my motto is: politically radical, judicially conservative) don't do this. I don't think the WArren Court was a mistake. Brown v. Bd of Education was a great decision, the constitutionalization of criminal procedure created rather a mess, but was absolurely necessary; our First Amendment jurisprudence is the crown of our liberties, etc. I think people can go both ways on Roe v. Wade--not that I oppose the idea that abortion is a right, but legally speaking it's rather a stretch, But the legacy of the Warren Court is worth fighting for. Just the same, I think the battle to extend our rights and freedoms are best fought in the legislature rather than the courts.
jks
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