Wednesday, May 25, 2005

Of "activists" and "originalists"

Conservatives of late have been casting judges in two molds. They're either "activists," bent on legislating from the bench, or "originalists," (I would have put a link on this, but it's not a real word) adhering strictly to the Constitution of the United States and the original intentions of the Founding Fathers. Activist judges do things like infer rights to privacy, rights to abortion, or rights to same-sex marriage. Originalist judges, presumably, would rule against those things, right?

But here's my question: Since the Constitution nowhere mentions abortion, privacy, or same-sex marriage, wouldn't a judge ruling against those things be exercising activism just as much as an "activist" judge ruling in the opposite manner? Well, since the Constitution nowhere mentions those issues, presumably they're states' issues to deal with, but what about state constitutions that don't mention those issues? I know there's been a big push lately to add constitutional amendments (on the state level) to ban gay marriage, but I just wonder if conservatives would be as up in arms if the activism had gone their way. In the vein of what I was asking about the nuclear option, is this a fight on principle, or on partisanship?