Conservative, Strict-constructionist Judiciary

As noted in my earlier post of November 10 I noted that in America the far political right holds that government has a narrow role to play in society. As part of their argument they frequently speak out about the need to eliminate “judicial activism”, that is, the courts by their ruling expanding civil liberties. They heatedly argue for a strict understanding of the Constitution and the Bill of Rights, not within an evolving civil context but within the original setting. They hold that it is a travesty to read into the Constitution and the Bill of Rights issues not envisioned or addressed by the Founding Fathers.

Until recently have been somewhat perplexed by the strength of this narrow understanding of the role of the judiciary within the religious right who like Dr. Dobson openly call for the President and Congress to appointment “conservative, strict-constructionist judges.” They want judges who will strike down rulings laws that expand civil liberties, impact personal and corporate property and trade rights that are not in keeping with what the Founding Fathers envisioned. Three issues drive their viewpoint,
1. Abortion
2. Gay rights and marriage
3. Broadening of the definition of the separation of Church and State which has led to the removal of the Lords’ Prayer and prayer in general from schools and the public square.

In all three areas the courts issued created rulings that permitted abortion, accepted the gay lifestyle that citizens are free to pursue rather than imprisoned as sexual perverts, and recognized the rights the validity of non-Christian faiths without being confronted daily in government settings by government sanctioned Christian worship and expression.

Many evangelical and fundamentalist Christians would freely nod in agreement that the courts have been prime movers in these areas. Hence, their stand against judicial activism makes sense, at least within a narrow context of just these issues over recent decades.

Their position puts the conservative strict-constitutionalist in a position of affirming that the courts were:
1. Correct in upholding the Dred Scott ruling and that slavery is an acceptable practice.
2. Wrong is upholding and expanding child labor laws.
3. Wrong is upholding minimum wage laws that helped to break the cycle of indentured servitude to their employers.
4. Wrong in its rulings such as Brown vs. the Board of education that integrated public schools.
5. Wrong in ruling after ruling of civil rights cases that eliminated segregation
6. Wrong in helping to define and uphold truancy laws.
7. Wrong in issuing rulings that eliminated laws that institutionalized the mentally handicapped.
8. Wrong in issuing rulings that allowed the mentally and physically handicapped to attend the same public schools as their neighbors rather than “special schools.”
9. Wrong in invalidating legal contracts with children that were not signed by the parents.
10. Wrong in granting Miranda Rights (the right to remain silent and be interrogated only with one’s lawyer present).
11. Wrong in allowing those who appear before the court to have a translator when they do not speak English.
12. Wrong in addressing in firm terms lynching and other forms of rush to judgments by the public.
13. Wrong in defining due processes that we now all value as part of our judicial system.
14. Wrong in defining slander and issuing other statements that affect the public safety of others, such as screaming “fire” in a crowded theatre, as not protected free speech.

A host of other issues could be added to above list. While the modern strict-constructionist would distance himself/herself from issues on the list, by the very nature of their static view of justice, they are against each of the civil rights issues in the above list. If one is a strict-constructionist, one cannot pick and choose what rulings are judicial activist rulings were appropriate or not appropriate.

Even though the courts may issues rulings with which I do not agree, I am pleased that our judicial system recognizes that society progresses and evolves, and the laws need to be understood afresh within that changing context. Though we hold our Founding Fathers in respect, a dynamic view of the judiciary recognizes that their views and writings are not divine writ. They may have been insightful, but they did not envision our contemporary society with its plethora of issues, nor are their views without flaws that subsequent generations have had to address.

I am pleased with a dynamic posture of the judiciary for a fixed view of the Constitution and Bill of Rights is not justice. A static posture is blind legalism which as the decades pass creates an unjust judicial system that lacks wisdom.

A Victory to al-Qaeda From Lindsey Graham

Have you ever heard of the Uighurs? This is a group Turkic people who live in Central Asia, including a western province of China, are in a type of diasporas in that they are dispersed and scattered due to Chinese persecution. For generations the Uighurs have unsuccessfully pressed for independence from China. The latest Chinese strategy is to label Uighurs who oppose their rule terrorists.

Many of the refugees have been welcomed in the United States and for the most part they are very pro-American. Human rights groups have become concerned that the Chinese government has used a war on terror to further dismantle the Uighur community, its language, its religion and art.

In 2001/2002 as part of its attack on al-Qaeda seventeen Uighur men from China were caught in the dragnet going across Afghanistan and taken as “enemy combatants” to Guantanamo. They were not with al-Qaeda or the Taliban. They did not fire a shot at the American military but due to their looks and location they were captured. I should mention that when they were captured there was one gun between them and they had no bullets for that solitary gun.

The United States military and government has long determined that none of these men were enemy combatants or had ties to al-Qaeda or the Taliban. The problem for the US is that if they returned these Chinese citizens to China that China would imprison these men, and possibly execute them, for advocating independence and trying to organize a protest movement.

There was another group of Uighur detainees mistakenly captured who the United States has settled in other countries. Those countries received great flack and pressure from the Chinese government. Hence when the US tried to find countries to accept these seventeen men they have been unsuccessful given the pressure from the Chinese government and China’s reaction to the earlier group.

The State Department has noted that these men are not a threat to the US. Though a judge has ordered that they be released, the US will not do so and are appealing the case. Instead they note that they have received some “terrorist” training and US laws prohibit anyone who has received such training from entering the country.

Senator Lindsey Graham (R) has admitted that the US made an error in retaining these men. That said, this clear headed and most logical Senator in his pontificating stammered forth that “the judge’s decision to release these detainees into American neighborhoods is unprecedented. The decision is a dangerous precedent in the war on terror, that should it stand, could imperil U.S. citizens and the detainees themselves.” What? The U.S. has made a mistake and recognizing it by accepting these men into the country imperils the US and undermines the war on terror? Evidently the Senator does not believe that admitting guilt, making amends and doing the righteous thing will bring harm to America and our war on terror.

The Senator pointing proudly to the law goes on to say, “this prohibition on admitting those with terrorist training into the USA” must be upheld because it is the law. What is included in terrorist training? Handling and shooting weapons? If so then anyone with military training would be excluded. Ah, but Graham would note that formal military training is different. But in whose eyes? And what about the hundreds of thousands of Americans who have learned to shoot and handle significant weapons who have never been in the military? The Senator’s rationale on this point is thin indeed.

As to upholding the law, a Republican hobby horse that is ridden hard and long, and goes just about as far as a rocking horse when applied to this matter. The Lindsey Graham is talking as if the law was some powerful godlike force over which he has no power. Who is the Senator and to what body does he belong? He is a member of a body that has the power to modify laws and grant special exceptions when upholding of the law creates an injustice.

The law is not all powerful. It serves us well as a means to order and govern society. There are times when upholding the law undermines the very principals upon which the law rests or is seeking to sustain. The Senator has failed to acknowledge this reality.

What I find most interesting is the reaction of Graham and many of his Republican colleagues to the report that Sarah Palin violated Alaskan law. A common response was that the violation was more of a technicality as she sought to uphold a greater law. For me, the Republican defense of Palin undermines Graham’s argument that these seventeen men should be held indefinitely in Guantanamo, for the rest of their lives if necessary.

Graham by his actions and words is saying that the law and the war on terrorism trumps righteous actions, making amends of wrongs and correcting an injustice. Where are human rights in this matter? Evidently human rights are not an issue for the Senator or a concern here. Senator Graham, has given al-Qaeda a victory when a Senator disregards fundamental principles of the country he serves and advocates that an injustice continue indefinitely.

Regardless from where you hale, feel free to post your opinion on this matter. Should these men be released? Is an injustice being done?