It’s Over

by Sal on January 17, 2006

in Politics

You know the Confirmation battle over Sam Alito is over, and that the Democrats have lost, when even the left-wing Washington Post publishes an editorial entitled “Confirm Samuel Alito“. The Post rightly argues that although they disagree with Sam Alito and the direction he will take the court, he is a well-qualified, highly intelligent judge who will take great care with the law.

This hasn’t swayed many Democrats, however, as they have moved to delay the committee vote by one week, and are even talking a possible filibuster (which would be suicide for them).

In a related news story, The Washington Examiner has published an article stating that judges like Alito, Thomas, and Scalia are really judicial activists because they are more likely to vote to declare acts of congress unconstitutional, and it is Conservatives who should be worried. What the Examiner misunderstands, however, is the definition of Judicial Activism. Judicial activism isn’t about how many cases one has overruled the congress, or how many times one has sided with the President, but rather how often one has followed the constitution vs. how often one “Makes Law”. If Congress passed a law that outlawed a religion (say, Lutherans), and the Supreme Court rightly overruled, and then the next month they passed a law outlawing Catholicism, and the next month a law outlawing Judaism, and the Supreme Court overruled all three times, that would not define activism. The constitition places limits on federal Legislative authority, and it is up to the court to keep that authority in check (part of the Checks and Balances system). Activism is when a judge decides that there exists a universal right in the constitution that isn’t there, such as sodomy, abortion, or other such rights.

The originalists on the court often rule against congress, but in favor of the states. This goes back to the principle of Federalism. The oft-ignored tenth amendment to the Constitution is the guiding principles of Federalism:

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This says plainly that the right of Congress cannot supersede the rights of the states, unless otherwise enumerated in the Constitution. It is that principle which leads judges such as Scalia, Thomas, and Alito to overturn congressional legislation.

{ 2 comments… read them below or add one }

Cannon January 17, 2006 at 11:56 am

And you REALLY know its over when the students in my federal courts class voted 17-7 (18-7 if I had remembered to vote) that Alito should be confirmed. Let’s hope that the final vote in the Senate shows that much support!


Mike January 17, 2006 at 2:31 pm

A 2/3 majority in a law school classroom of all places? And in the class where students are taught how to rewrite the constitution according to the whims of their bleeding hearts? (I’m not referring to your class Professor Bellia). The Democrats have really outdone themselves this time. Sympathy from law students. WOW!


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