Reich Wing Activist Judges

"There is no independence of law against National Socialism. Say to yourselves at every decision which you make: 'How would the Fuhrer decide in my place?' In every decision ask yourselves: 'Is this decision compatible with the National Socialist conscience of the German People?' Then you will have a firm foundation which, allied with the unity of the National Socialist People's State and with your recognition of the eternal nature of the will of Adolf Hitler, will endow your own sphere of decision with the authority of the Third Reich and this for all time."

Dr. Hans Frank, Commissioner of Justice and Reich Law Leader, to German judges in 1936

When the far right complains about "activist judges" they are actually complaining about an independent judiciary which recognized the unconstitutional nature of the unitary form of government as proposed by their would be Fuhrer, George W. Bush. On a broader level, the term "activist judges" has also been applied to those judges who would expand the rights of their fellow Americans, as opposed to the truly activist judges on the far right who, having taken their oaths to defend and uphold the Constitution, would use their seats to limit or even abolish the rights of American people. In other words, the only activism which is coming from the American judiciary is not from the left, but from the right, which has seen the constitution as an inconvenience for at least twenty-six years and probably longer.

A case in point was Friday's decision by a federal appeals court which sided with the Bush Administration in an electronics surveillance case, a decision which will inevitably make it easier for the regime in Washington to tap our phone calls and broadband transmissions. I won't bother you with the details of the case; instead I shall merely ask that you click on Appeals Courts Backs Bush on Wiretaps for more information. That said, I will offer the following commentary.

This is not a good sign.

The far right has been packing the federal judiciary with inept totalitarians for twenty-six years. And when they weren't able to further pack the judiciary they were able to block virtually any mainstream nomination that was made during the Clinton Administrations, virtually guaranteeing that the instructions as offered by Doctor Frank to German Judges in 1936 would become a reality for Republican Judges in 2006.

I see no reason to differentiate between the situation that occur ed in Nazi Germany and the situation which currently exists in the United States. Both Frank and Hitler were opposed to the idea of an independent judiciary. Both Bush and his legal eagles are dedicated to the idea of an obedient judiciary that will rubber stamp virtually any attempt by this president to impose right wing Christianity and to limit the rights of those who disagree with their very narrow and very unconstitutional agenda Just as the National Socialists of the 1936 were dedicated to the eradication of the Wiemar Constitution, so too are George W. Bush and his fifth column followers dedicated to the abolition of the form of government that was handed down to us by James Madison and Alexander Hamilton. I don't know if they want to create Christian theocracy in which non Christians will serve in the roll of second class citizens, or if they want to create a cult of one in which the president is the supreme commander in a unitary form of government without checks and balances is unclear. For all I know the might embrace the worst of both alternatives--a repressive theocracy in which the President serves as a sort of Puritan Divine.

But I do know this: Right wing activists want to use the federal and state judiciaries to dismantle our Constitution. They even have a process, a "legal" philosophy, by which they intend to accomplish this. It's called the "Doctrine of Original Intent" and it's based upon the truly oppressive idea that Americans in the year 2006 should only be entitled to the freedoms and liberties that were granted in 1787. In other words, they genuinely believe that the Constitution is a lifeless piece of rock, that it should be interpreted in a manner that will grant the fewest possible liberties to the fewest possible people. I would not be surprised if, at some future date, these strict constructionists were to propose bills and amendments, or reactionary judgements that would truly take us back to 1787, to a time when a black man was considered only 3/5 human. I would not be surprised if they were to propose measures that would abolish the 19th Amendment and recreate a system in which voters were defined in terms of white, male property owners. As you can tell, 1787 was a fine time to live--if you were a white, male, Christian property owner with enough slaves to keep the plantation up and running. But it wasn't such a fine place to live if you were black, female, Jewish, or otherwise non-christian. And yet these right wing activists routinely espouse a system of constitutional law that would both, ignore more than 200 years of history, and drag us back to the bad old days when a select ruling class was allowed to vote, to a time when the State legislatures elected our Senators.

Instead of a living, breathing document which adapts to social and historical change and which expands the liberties of the American people, these radical right wing activists (many of whom come with the most dismal of qualifications) propose a lifeless piece of rock which would almost invariably be used as a millstone around the necks of nonwhites, women, and non-Christians. And to make the situation even more bizarre, the idea of original intent wasn't even the intent of the Founding Fathers. The Framers knew that American society would evolve. They foresaw this. To that end they gave us the right to amend the Constitution. They left certain provisions deliberately vague, understanding that the Constitution would be interpreted by future judges. Moreover, Thomas Jefferson, who was not a framer per se, actually suggested that no generation had a right to impose its beliefs on the next generation, going so far as to suggest that each generation should tear up the constitution and rewrite it from scratch. That may sound radical, but it is no less radical than the idea that we should all live in a replay of 1787 and ignore every artistic, religious, technological, or societal development that occurred during the last 219 years. And I have more bad news for you. In 1787, the Framers, having just won a protracted revolution against a mentally deranged monarch and a mother country with an establish national church, were in no mood to create a system of government in which the President was a virtual king, in which a particular religion would have the power to impose its belief system on the entire nation. But that hasn't stopped the radical right wing activists and their radical Christian allies from proposing the idea of a Christian Republic; nor has it dissuaded them from the idea that we need a virtual king or dictator to guide us through a difficult situation.

This may come as a shock and a revelation to the right wing activists (I just can't bring myself to call them judges) but the Republic did very nicely as a Republic for nearly 119 years. The founders did not want us to be a monarchy; the founders did not want us to be a theocracy, and--no matter what the neocons may believe--they did not want us to be an empire. And if the right wing activists don't get that then I see no reason why they should be called Americans when they are so clearly dedicated to overthrowing the Framers' creation.