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?
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