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Location: Las Vegas, Nevada

I am a self proclaimed coffee addict and Executive Director of a non profit missions agency working primarily in the Mexican cities of Oaxaca, Guadalajara, and Ensenada. I've been married for over 30 years to Chelle, and we have one grown son, Joseph, a graduate of Auburn University in Alabama.

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Monday, May 12, 2008

Activism Smacktivism!

Some people call it judicial activism. The interpretation of the US Constitution by the judicial branch of our government. The theory here is that our constitution is a static document and that no interpretation was, or is necessary.

In the minds of many, we are not to interpret the constitution. Just follow it. And if you don't like what it says, you can pass a constitutional amendment. Well sometimes that just doesn't work. Sometimes the tyranny of the majority can prevail and prevent good sensible laws and changes from being passed.

Last week a little known woman, very important to American history died. Most of you will not even know her name. I know I didn't. But I, for one, will be forever thankful for her sacrifice. Her name was Mildred Loving.

Why is she a hero? Because in 1958, at the age of 19, Mildred Loving, nee Jeter, like millions before her, said I do. The only difference for her was that as a young African American woman, it was illegal to marry someone of another race. Less than five weeks after her marriage to Richard Loving, a white bricklayer, Virginia State police burst into their bedroom and arrested them. They were jailed on felony charges of breaking the Racial Integrity Act of 1924, passed by the Virginia Legislature.

In 1979, I married Regina Michele Johnson, a beautiful 18 year old African American woman I met at church. It was only 12 years earlier that what has been called the most liberal activist Supreme Court we have ever had, headed by Earl Warren, effectively ruled laws barring interracial marriages unconstitutional. The case was Loving vs. Virginia, decided by the US Supreme Court in July of 1967.

Can activism go too far? Perhaps. But not in this case. Thank you Mildred and Richard Love. If not for you, I might not now be married to the true love of life, Regina Michele Johnson ... Miller.

Comments on "Activism Smacktivism!"


Blogger Patrick M said ... (8:18 PM) : 

Let me clarify on judicial activism. The Constitution is a static document. But interpretation is how we square it with existing situations. Activism is when you create a right that is not enumerated or implied by ruling it so. Roe v Wade, for example, took something that was clearly a state issue and yanked it to the federal, essentially taking any reasonable control by the states away. That's an activist ruling.

(note: Roe v Wade was one I know well enough to comment on, that's why I used it. My views on abortion are another subject)

On the other hand, you cite a case that involves a clear violation of personal rights, which can be addressed with both precedent (many civil rights rulings before) and under the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In general, any law that restricts personal rights is subject to be pruned, either by the state or federal courts.

30 years next year? Premature congratulations are in order. We should all be so blessed.


Blogger Dave Miller said ... (8:49 PM) : 

Good thoughts patrick except I have heard conservatives argue that Brown vs. Topeka, a 9 - 0 Supreme Court decision striking down school segregation was also judicial activism.

They of course are planting their cross on the states rights issue. An issue I might add which conservatives typically support, until a state does something they do not agree with.

Interesting isn't it?

And yep, 2009 will mark 30 years I would never in my life trade. I am still trying to figure out what we are going to do. It looks like Machu Pichu in Peru, sometime in December, winter here, summer there.


Blogger Patrick M said ... (4:14 PM) : 

As a followup, I do wonder what your opinion on the gay rights runing in California is, as there are some parallels to this post involved. I'll have my two cents on my monday post.


Blogger Dave Miller said ... (5:55 PM) : 

My marriage is not defined by what others do. No matter what someone chooses to call marriage, I know that what I have is precious, important, and pleasing to God.

Politically, I am always amused by conservatives who preach states rights, until a state does something like this.

FOr the record, I do not equate the struggle for recognition and rights of the GLBT lobby as equal to the civil rights struggle.


Blogger Bullfrog said ... (11:58 AM) : 

Dave, the problem with the recent CA Supreme Court decision is not that a state is exercising it's rights; it is that the people cast their vote overwhelmingly in 2000 to say they believed Marriage should be defined as between one man and one woman. We are talking 61% of California voters.

And now 4 judges out of 7 decide differently, and create a new law; thats the job of the legislature, not the Supreme Court.

Even if you don't have an ethical aversion to marriage being redefined, this is bad news for Californians.


Blogger Dave Miller said ... (10:38 PM) : 

Bullfrog, unless I am mistaken, aren't the judges in CA elected by the people and thus subject to recall or removal?

Didn't that happen with Rose Bird a while back? That is part of the messiness when you live in a republic [which we do] as opposed to a direct democracy.

The people cannot make laws that are unconstitutional just because the have the majority.


Blogger Bullfrog said ... (8:09 AM) : 

The justices in this case are not interpreting the California Constitution as much as they are inventing new "rights"; specifically, they determined that it is a "fundamental right" to create a family, no matter who you are, and regardless of the fact that a homosexual couple are incapable of producing offspring. Nowhere in the California, or Federal Constitution for that matter, does it stipulate this to be a right.

This is precisely why this action has been labeled judicial activism. Judges do not make laws, they interpret the laws of the land and decide cases based on precedent. There is no precedent for redefining marriage.


Blogger Dave Miller said ... (8:22 AM) : 

Bullfrog, not wanting to continue off on the gay tangent, let me try and bring this back to the original posting.

The people of Virginia, and many other states at one point passed laws, presumably favored by the majority, making it a crime to marry a person of another race.

Was it judicial activism when the courts deemed those laws ultimately unconstitutional, even though they had the support of the majority of people in those states?

If not, how are the actions of the CA Supreme Court different? All they did was strike down a law prohibiting gay marriage as unconstitutional.


Blogger Bullfrog said ... (8:59 AM) : 

I do not believe the Constitution discriminates against people based on race, so I would have to agree with any finding by the courts striking down state laws that do. The Constitution does give each state the fundamental right to govern themselves, but it is also a guideline for those states to follow.

I see a big difference between:

1. Men and women of all races should be able to marry and raise families.

2. All people have a "fundamental right" to marry whomever they please and define "marriage" and "family" any way they see fit.

Defining marriage and family this loosely is dangerous and potentially destructive, and my hope is that we amend the California and U.S. Constitutions to protect marriage once and for all.


Blogger Dave Miller said ... (9:06 AM) : 

I'll be honest with you Bullfrog. I am of two minds on this, seeing both sides, and personally people who have struggled with both issues raised here. [race and being gay]

But if I was pinned down and forced to make the call, here is where I stand today.

I believe God wants marriage to be between a man and a woman. That being said, the church should not be in the business of sanctioning gay marriage.

However, in a pluralistic society, I am not at all sure I want our gov't involved in making the rules on this issue. So with the same logic that I accept civil unions, which I also feel are destructive, I can accept gay marriage. Civilly.


Blogger Bullfrog said ... (10:03 AM) : 

This article explains it better than I ever could:


To me, this is just not a trivial matter. And, the government should have some say as to what is right or wrong. Ultimately, laws and authorities have been put in place by God to restrain evil.


Anonymous Gordon Mallon said ... (6:44 AM) : 

A couple better examples of the "State's rights are only good when they do what we want," school of thought. The voters in Oregon passed physician assisted suicide. The voters in Oregon and California passed two different medical marijuana laws. The conservatives at the DOJ, DEA, etc have threatened doctors and tried to end these laws by their own executive power, without resorting to legal means.

"States rights" came into it's own as a defense of the institution of slavery. It has been used by about everyone since, depending on the issue.


Blogger Dave Miller said ... (2:04 PM) : 

Good points Gordon. The states rights issue also parallels the we don't want government involved in every corner of life argument.

Which really means I do want them involved in telling me what to, but by all means, they should tell you what to do.

I wonder if Bob Barr will get any traction this election season as basically a saner version of Libertarian Ron Paul?


Blogger Mike's America said ... (10:23 AM) : 

Patrick is right. It's not judicial activism, but a correct interpretation of the Constitution to get rid of race laws.

P.S. When are you going to post an anniversary photo?


Blogger Dave Miller said ... (10:40 AM) : 

Next year on number 30!


Blogger Mike's America said ... (9:36 AM) : 

Dave: Cajun Tiger (who is in Iraq) dropped me this last night:

"Mike...latest figures have the Iraqis outfunding us 10-1 on reconstruction projects."

He didn't leave me a link, but if he does I will pass it along.

So much for the latest line of attack that Iraq isn't paying their way. It's getting harder and harder to sell defeat and disappointment in Iraq.

But will he hold accountable all those Dem politicians who told us for years we had lost and should get out and hand the place over to Al Queda?


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