Big Head Press

L. Neil Smith's
Number 621, May 29, 2011

"Anything less than freedom is not freedom, but something else."

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Activist judges to the left of me...
by Jim Davidson

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Special to The Libertarian Enterprise

...and activist judges to the right of me. Here I am, stuck in the middle with you.

Some years ago the lament was sent up that "liberal activist judges," especially on the USA supreme court, were "legislating from the bench." Now, it happens that what they were doing were things that the likes of Stephan Kinsella to this day claim cannot be "read into" the clear text of the amended constitution. You know, things like the unanimous decision in Loving v Virginia in which the Fourteenth Amendment was applied to state-issued licences for marriage, allowing, to the consternation of white, Southern lawyers like Kinsella, black women and white men to marry.

Conservatives made much of this supposed evil of "liberal activist judges" and their supposed "legislating from the bench" because, presumably, they wanted Americans to believe that conservative judges would uphold and support the constitution, as amended. So there was a generational shift in federal judge appointments beginning with Ronald Reagan and the senior and more corrupt, CIA-oriented George Bush. However, this shift toward more conservative policies for judges continued during the Clinton years, with the comparatively conservative and thoroughly militaristic Clinton appointing extremely "conservative" judges throughout the federal judiciary at all levels. Naturally, his replacement, the younger and more buffoonish, and even more openly militaristic George Bush exacerbated the practise. Not to be outdone, Obama has continued essentially all of the policies of his predecessor with one or two arguable exceptions among judicial appointments.

Guess what? We now see the same sort of thing going on, but from the other direction. Today we see conservative activist judges legislating from the bench. Only this time, instead of voting rights and equal rights for minorities, women, and the application of things like the 14th Amendment to issues like marriage, we see the conservative activist judges attacking, from the bench, the individual freedom represented by the Fourth Amendment because, well, they've always hated it.

Yes, conservatives hate your freedom to be secure in your home, person, and possessions. So they've set up rape centres at every airport. They've set up sneak and peek "warrants" to make inspections of every home and, where they feel it appropriate, to plant some evidence. They've set up dogs instead of judges to jump and bark (often because of the past presence of another dog) to indicate "authority" for police by the side of the highway to enter and ransack a private vehicle - funny that dogs are now in possession of as much judicial authority as conservative judges. And so you have no privacy, due to conservative activist judges legislating from the bench - legislating away the Fourth Amendment, which they've always hated and which they've insisted upon demolishing in the name of "law and order."

But is it order? No. It is coercion. Conservative activist judges legislating from the bench want to eliminate your free will. They want to force you into line. If you refuse to obey, they want to force you into slave labour camps, such as the one Sheriff Joe Arpaio runs in the Arizona desert. They want to have you and your children groped and fondled at the airports and they claim that's okay, no matter how many former rape victims are traumatised. After all, conservatives to a man believe that rape is only sex, not a power dominance activity, and that rape victims are to blame for daring to wear clothing of their own choice rather than the Victorian costumes of modesty they themselves deride and abjure.

Conservatives, in case my meaning isn't clear, are just as bad, or worse, than liberals in appointing judges. At least when the liberals were appointing judges, the "legislating from the bench" amounted to applying the Bill of Rights and the 14th Amendment to ever more areas of human activity. Nowadays even very clear attempts to lower the age of voting, which ought to be applied to activities like drinking, renting a car, and buying tobacco are, instead, ignored by conservative activist judges legislating from the bench to remove such freedoms despite the clear text of the Ninth Amendment.

It's enough to make a man want to get away from all of you. People. Ick.

Jim Davidson is an author, entrepreneur, and anti-war activist. His 1990 venture to offer a sweepstakes trip into space was destroyed by government action as was his free port and prospective space port in Somalia in 2001. His 2002-2007 venture in free market money and private stock exchange was destroyed by government action in 2007. He's going to Mars if he has to walk. His second book, Being Sovereign is now availble from Lulu and Amazon. He is currently working on a book about travel to Mars with John Wayne Smith, a book with international fugitive Chad Z. Hower on his story, a book on sovereign self-defence, and a book compiling his letters and essays in The Libertarian Enterprise from 1995 to 2010. Contact him at or Come visit IndSovU teams at gatherings in June 2011 in New Hampshire, September 2011 in Montana, December 2011 in Florida, and March 2012 in Austin, Texas.


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