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Editor: Rod Sullivan
Profession: Maritime Attorney

Category: Supreme Court Rulings

Lori A. Ringhand, a professor of constitutional law, election law, and comparative public law at the University of Kentucky is about to publish a law review article which, for some reason, has captured the attention of the New York Times so much that they published a September 11, 2006 editorial entitled "Activism Is in the Eye of the Ideologist." The editorial starts with the almost laughable assertion that "anyone who follows the courts knows that conservative judges are as activist as liberal judges" concludes with the self-righteous admonition that "...what is wrong is for one side to pretend its judges are not activist, and turn activism into a partisan talking point..."

Ringhand, whose political leanings are unknown to me, theorizes in her article that Supreme Court Justices Thomas and Scalia are the true "activist judges" because they frequently vote to overturn Supreme Court precedent and that the liberal justices are actually the "less activist" because they more frequently vote to maintain the status quo. The article is to be published in "Constitutional Quarterly", a law review published by the University of Minnesota where one of Ringhand's compatriots in a blog known as Ratio Juris is also a law professor.

The mathematics used to support the argument involves a type of sleight of hand which one might call "redefining the definitions." To most of us, judicial activists are those who look upon the Constitution as a "living, breathing document" to be bent and molded to current, and usually liberal political philosophy.

Lets just take one example. Under the Constitution, the federal government has jurisdiction over the "navigable water of the United States. To judicial activists the Federal government has jurisdiction of all boggy terrain, which is wet during any portion of the year, because the bog is a "navigable water of the United States." Off course, no boat can float on the bog, but that doesn't matter because the water from that bog will someday, somehow, flow into a navigable river. Since the bog is therefore part of the "navigable waters" it is regulated by the Army Corps of Engineers, and not subject to state jurisdiction. Under the "activist" definition of the term "navigable waters of the United States" the jurisdiction of the United States begins at the end of your ureter (need I be more specific?)---where the water you consume begins its journey to become a part of the navigable waters.

Such redefinition of the Constitution have a powerful political impact. It is such laws which permits the federal government to tell you how much water your toilet can use, and permit the Army Corps of Engineers to control all building and construction in over 50% of the State of Florida as "jurisdictional wetlands."

According to Ringhand, when the conservative justices says, for example, that the word "navigable" means "able to be navigated," they are being judicial activists because prior judges found that bogs were "navigable." In other words, anytime Justices Thomas and Scalia are voting to overturn part of the liberal agenda of the Courts for the past forty years, they are being activists.

Thomas and Scalia are real closer to being strict constructionists. They tend to uphold inconvenient portions of the Constitution, like the Tenth Amendment [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.] which limit the power of the federal government.

Their philosophy appears to be, like that of the Founding Fathers, one of less government = less taxes =more freedom.

Professor Ringhand may have captured the attention of the New York Times, and her theory may "have legs" because it give a ring of empirical or mathematical support to an otherwise humorous concept---that those who try to undo the judicial activism of the past are the true activists.