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Colorado Springs Gazette: ACLU wants judges to make new laws

Author: The Colorado Springs Gazette Editorial Board - July 14, 2018 - Updated: July 15, 2018

Supreme Court nominee Brett Kavanaugh said judges “must interpret the law, not make the law.”

If Kavanaugh means it, he cannot torture liberals with new laws they hate. He cannot create new laws to appease President Donald Trump and reward him for the appointment.

Oddly, an organization claiming to defend civil liberties wants judges to make laws.

The American Civil Liberties Union distributed an opinion column Friday by Arthur Eisenberg, legal director of the New York chapter of the ACLU. It blasts Kavanaugh for suggesting judges should not legislate.

“The assertion that judges should not make law rests upon a fundamental misunderstanding of the role of judges within our common law tradition,” Eisenberg writes.

Our founders reshaped common law tradition to improve it. They wanted restoration, protection and enhancement of civil liberties they had lost as Englishmen. They established a judiciary restrained by constitutional and statutory laws, enacted and amended through democratic and legislative process.

Eisenberg claims “the entire body of law regarding freedom of expression has been created by the Supreme Court.” He cites the First Amendment, which prevents “Congress” from abridging speech. He credits judicial lawmaking for extending the First Amendment beyond restraining Congress.

“Proscriptions of the First Amendment are not limited to ‘Congress,’ ” he writes. “They apply, as well, to the executive branch and to state and local governments. Moreover, the First Amendment extends its protective reach beyond ‘speech’ and ‘press’ as it also guards against government censorship of movies, artwork, the internet, and other forms of expression.

“These deviations from the text of the First Amendment and the expansion of free expression beyond its narrow words were accomplished entirely by judicial lawmaking.”

No, they were not, and it is a ridiculous assertion.

Eisenberg apparently forgets the Civil War, reconstruction and 37 states that ratified the 14th Amendment. Indeed, the 14th Amendment — not “judicial lawmaking” — expands First Amendment restraints to the executive branch, states and local governments. It is a product of war and democratic process, not judges making laws.

And, no, “judicial lawmaking” does not extend First Amendment protections to “movies, artwork, and other forms of expression.” Courts merely interpret “speech” to mean “expression,” which is not a stretch given the First Amendment’s protection of “peaceable assembly” — an act of expression.

One cannot create a movie or internet message without “expression.” Movies and the internet were not thought of when James Madison drafted the First Amendment in 1789. In his world, “press” was the best word for “media.” The phrase “mass media” traces back to the early 1920s. Use of “media” to reference movies and other modern mass expression began with the 1954 release of Marshall McLuhan’s book “Counterblast.”

Madison would have used “media” — to protect movies, the internet and more — if the word and modern forms of mass communication existed then. Jurists easily draw this conclusion and apply the law accordingly.

The founders created a judicial branch of government to interpret constitutional law well into the future, applying stationary principles of government limitation to ever-changing words and circumstance. They did not establish a judicial branch to parallel the legislative branch and undermine the democratic process of electing representatives to enact the people’s laws.

The ACLU wants nine lawyers, each chosen and appointed for life by one other person, to create new laws.

That’s not a democratic, constitutional republic of the people. It’s not a system to protect civil liberties our founders lost under England’s Common Law. It is a juristocracy, in which presidents make new laws by appointing submissive judges. True defenders of civil liberties cannot share the ACLU’s weird new vision.

The Colorado Springs Gazette Editorial Board