From time to time I come across someone who expresses their belief that the only understanding of the Constitution that is required is a simple reading of the Constitution. If this were the case, a class on the First Amendment would seemingly only require an afternoon, at best. A lot of folks happen to think that what occurs in courts is either the end result of personally held beliefs of judges, or random. Reading the Constitution and understanding the clear meaning of the words there can be frustrating when one attempts to understand the reasoning behind a judge's decision. For, example, the First Amendment tells you that Congress shall make no law abridging speech. Try yelling something obscene at someone and defending yourself in court with the brick of "free speech." Courts have faced these situations earlier and have come up with ways to abridge your free speech rights in ways that make for a civil society. Take the example of yelling fire in a crowded theater. In the mad rush to escape, people are injured, perhaps killed. Does the utterrer have King's X when it comes to this speech? The courts have said, no.
Building upon prior decisions by previous courts is known as stare decisis. "Previous decisions."
Whatever has been legal before, is legal now.
Understanding the role played in appelate courts, like our Circuit Courts or the Supreme Court, is essential to understanding that the clear words of our Constitution have been modified over the years by our courts decisions on previous cases. Stare decisis.
Studying the First Amendment is therefore a lengthy endeavour. Not an afternoon's work. Even more daunting are Commerce Clause cases. This is due to the fact that the courts have adopted the attitude that certain cases deserve outcomes not expressed in the limits on government enumerated by our Constitution. These are the cases decided by what are referred to as "activist" courts. Now, as a more careful reading of the enumerated powers given our government by our constitution are more carefully followed, a new breed of "activist" is being bred; the Originalist. Or, the Strict Constructionist. These are jurists whose simple readings of the words of the Constitution have found that some of the decisions that have allowed far-ranging intrusions into our personal liberties may have been poorly decided. It is this "revisionism" that is coming under scrutiny by the Left, who have been well served previously by activist judges.
So, one can be labelled an activist for either finding meaning that was never there before, or for refusing to adhere to poorly crafted precedent when overturning poorly written legislation. Therefore, to more fully understand the issues surrounding Judge Vinson's recent declaration that Obamacare is unconstitutional, I offer you this illuminating, and at times humorous, understanding of the issues (.pdf) as presented by Jonathan Adler in the Lewis & Clark Law School Review.
Read, enjoy, learn.
UPDATE: If you took the time to read the Adler article, the brevity of the comments here will make a lot more sense.
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