It’s Déjà vu; another Supreme Court Nominee battleWith the prospect of a conservative Supreme Court, you may wonder, How far can they go?
If you watch TV during campaign season, you should be familiar with liberal activist judges, who create rights (such as privacy and dignity) and supporting affirmative action; and interpret the Constitution. Looking at 20th century history, conservatives can also be judicial activists:
Child Labor Shall Not Be Infringed
In the 1910’s, Congress passed Federal child labor laws applying to products and services sold across state lines (sounds constitutionally sound). But, according to the Lochner-era Supreme Court, those laws violated the due process rights of corporations.
Creating the Asian Race
Why were Asians not included in the 13-15th amendments as suitable for citizenship? Three possible answers:
Willful action to let Africans become citizens, but keep out the Orientals?
An oversight or ignorance on the part of President Lincoln and his fellow abolitionists?
The Founding Fathers meant Free White Men as a contrast to the enslaved population of Sub-Saharan African-Americans?
Conservative activists of the day believed that the abolitionists really didn’t like Asians. The Supreme Court had to create the Asian race as a legal entity. Otherwise, those Asians would have the Right to attend white schools and live in white neighborhoods. A right, and not a privilege, at that. During the Jim Crow era, white privilege was worth suing for. In cases involving Indian, Japanese and Chinese plaintiffs, the Supreme Court conceded that, on a scientific basis, the fair-skinned Asians had claims to the White Race. Socially, they were distinct. The racist mob, not impartial intellectuals, gets final say in Whiteness. As European Ethnics established their whiteness, a boundary “had” to be drawn at the Caucasus Mountains, creating the Yellow Other.
Isn’t it better that modern-day conservative judiciaries are constitutionalists rather than activists?