Judicial activism is clearly in the eye of the beholder. The current Supreme Court is as activist as any liberal Court has been in the past. Here are three examples (I won't even use Bush v. Gore although it could qualify as a fourth.)
Campaign Finance Reform. When the Supreme Court threw out this law, I really think liberals missed the boat by emphasizing the wrong issue. Instead of ranting on about how big money will flood the system (which is certainly true), we should have gone to first principles. Specifically, we should have hammered on the notion that a corporation (or a union for that matter) is somehow a "person", which is at the heart of the decision This is a clear example of judicial activism, especially for those who argue for some form of original intent. Nothing like a modern corporation existed at the time the Constitution was written. Corporations are fictional creations of statute, so any attempt to make them into people is a bald-faced creation of a right that does not exist in the Constitution. We should have been saying it over and over. (I believe that even William Rehnquist--no shriveling liberal he--did not ascribe to the current Court's activist interpretation. See http://larssonfest.com/content/why-justice-rehnquist-thought-it-was-ok-regulate-political-speech-corporations)
Money Is Speech. How can anyone take this seriously? Money is money; speech is speech. If you want to make them the same, then you are adding words to the Constitution.
Liberal Interpretations of the Takings Clause. Although this hasn't specifically happened yet, I predict that it will happen someday with this Court. If you claim that putting restrictions on the use of property is tantamount to "taking", then you are adding words and meaning to the Constitution that are not there. "Taking" and "restricting" are not the same. Taking means taking--nothing more, nothing less. If the framers wanted to say "take or restrict" then why didn't they? If you say that restricting property use is "almost like" taking and unconstitutional, then you are practicing judicial activism.
It's about time that we stop the right-wing from appropriating the term "judicial activism". So let's go to first principles and start using the term to describe their reckless rewriting of the Constitution.
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"Specifically, we should have hammered on the notion that a corporation (or a union for that matter) is somehow a "person", which is at the heart of the decision"
Absolutely.
However, they understood that very well. They like the corporation or union, etc., as person interpretation. That is why they didn't oppose it. Neither reps nor dem oppose it. Principled people on the left and right oppose it for good reason, but politicians and their friends do not. Hence, no opposition.
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