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October 25, 2006 | South Carolina Headlines


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It Goes Deeper Than Judge Shedd
Jonathan Pait
June 27, 2002

The headline in Tuesday's The State looked positive for Judge Dennis Shedd. Then there was the subtitle: But NAACP, other groups fear Shedd's appointment would push court too far to the right.

The NAACP we know, but who are these "others?" The article lists "several civil liberties groups." American Association of University Women; law professors from UNC, Duke and N.C. Central University; and the South Carolina Progressive Network are some of those mentioned.

These groups are concerned that Shedd's appointment would "push the already-conservative court too far to the right." They complain that the court and Shedd specifically resist civil rights cases.

The liberal causes they are concerned for carry nice sounding titles: "affirmative action, women's rights, fair employment and voting rights." Who could be against giving minorities' equal access to jobs? Why would anyone wish to deny women the same rights that any other gender (oh yeah, there is only one other gender) would have? We all feel that employers should be fair in their hiring and firing of employees. Do we not agree that everyone who is a legitimate voter should have access to the polls on a day such as Tuesday's runoff?

It all boils down to two things. One, how does one define "affirmative," "rights" and "fair." Two, how does one seek to use the courts to advance those interpretations. These are the true issues at stake in this battle over not only Judge Shedd but also all of the President's appointments to the bench.

The definition of such words (which become ideas) as "fairness" have always been a dividing line between conservatives and liberals. Simplistically stated conservative ideology says that fairness is giving everyone the same opportunities with the minimal amount of government intrusion. The final responsibility lies with the individual. Naturally, this will lead to some successes and some failures. Liberal ideology says that fairness is only arrived at by artificially bringing individuals to a common level. It is the government's responsibility to create this "level playing field." Success is measured according to the whole and not according to the individual.

It is well that these theories be debated and studied in some women's studies major at UNC or Duke. However, the more important battle is engaged when deciding how our court system will be used to implement these divergent philosophies.

How does a person with a liberal philosophy approach the courts and laws of our country? Again, to make the article as short as possible we will narrow down the approach without listing every nuance. They view the courts as an instrument to adjust the laws to meet an ever evolving society. Each generation requires a new approach to the problems of the day. The authors of the Constitution could not have foreseen exact scenarios and they intended for the judiciary branch to interpret the document to make the law germane to today.

The conservative takes a more constructive view of the Constitution and therefore a much more limiting view of the court system. The document is our standard. The courts are not intended to be a tool to create public policies. The authors of the Constitution intended it to be the standard against which all laws created by the legislative branch would be measured. If a public policy is to be instituted as law, it must go through the legislative branch--not the judicial branch.

So, the liberals wish to paint conservative judges as a mirror image of liberal judges. They do not see these judges as maintaining the original intent of the Constitution, but manipulating it to suppress minorities, women, etc. Therefore, a constructionist judge, such as Clarence Thomas is known as a "right-wing" judge.

The battle is an important one. Our future as a nation depends on it. Without a constructionist view of the Constitution we fall into the trap of relativism.

Imagine setting sail across the Atlantic. Half way through your voyage, the captain informs you that you will no longer being using any of the existing navigation equipment on board. Instead, he will be using a sextant. However, he will not be using the stars to line up his instrument. He will be using the bow of the ship. In other words, the ship will become its point of reference. You know what the result will be.

The liberal approach places the current prevailing social mores as the point of reference to guide us. All laws must be interpreted according to a fluctuating standard. This leads to a society constantly second guessing itself and ultimately leads to that society's loss of purpose.

Already we are beginning to wallow in the morass of relativism. Our courts are being influenced to align their sextant with the bow of the ship instead of the star that is our Constitution. It is the star to help guide us to that port of our full potential.

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