A leftist guide to mis-defining terms when it comes to Kagan

The American Prospect has written a little guide for its readers explaining why Republican attacks will fall off Kagan like eggs off Teflon.  You and I know that they won’t matter because of the Democratic majority, and maybe the American Prospect knows that too, because its defense is lazy.  One aspect of the defense, however, caught my eye, and I wanted to share it with you:

She’s an activist.

Republicans have pointed to two things — Kagan’s clerkships for Thurgood Marshall and liberal judge Abner Mikva, and her admiration for Israeli Supreme Court Justice Aharon Barak, whom she praised as a “judicial hero” — as evidence that she is a judicial activist who tailors her reading of the law to whatever result she wants to achieve. Criticism of Marshall, though, isn’t likely to take Republicans very far. As the first African American on the court, he’s a largely unimpeachable figure. Democrats will also note that some conservatives have expressed admiration for Barak, including Justice Antonin Scalia, the current intellectual leader of the conservative wing of the court.

This kind of criticism would offer an opportune moment for Kagan to provide a liberal rebuttal to John Roberts’ hollow conceit about judges merely calling balls and strikes.

The Democratic response, though, will likely be a simple one. In terms of overturning precedent, this court is the most activist one ever produced. This may be effective, but it also reinforces the conservative canard that judges simply interpret the law as written rather than resolve the inherent and inevitable tensions between the principles and obligations outlined in the Constitution.

There are three arguments there.  The first argument is that, simply because Marshall was the first black Supreme Court Justice, nobody can criticize his approach to judicial interpretation.  It’s a closed subject. This is not an argument, of course.  It’s the absence of argument.

The second argument is that the mere fact that Barak may have admirable traits means that he is off limits for criticism when it comes to his approach to judicial interpretation.  Again, this is simply a way of preventing intellectual discourse, and shutting down argument ab initio.

The third and final argument is that, because Roberts’ court is the most activist ever, no one can criticize Kagan on the ground that she might be an “activist.”  It’s this argument that intrigues me, because it shows how differently Lefties and Righties view the notion of judicial activism.

When conservatives think of activist judges, they think of judges who, at their core, are unconcerned with the limits the United States Constitution places on both federal and state governments in their relationship to the individual citizen.  Their decisions are decided by references to natural law, and penumbras, and African tribal decisions, and Israeli Supreme Court decisions, and emanations and emotions.  The Constitution, if it makes an appearance at all, is folded, spindled and mutilated into meaninglessness (there are those penumbras and emanations).

To the conservative mind, the anti-Constitutional bent of decisions made by liberal, or activist, judges, means that, to the extent a prior judicial decision violates Constitutional restrictions, that decision is invalid, and should be overruled.  In other words, merely because a case exists, it is not automatically valid precedent.  If the case was void ab initio, overruling the decision isn’t activism; it is, instead, a corrective act to reinstate Constitutional limitations on government.

To the Left, however, “activism” means any decision that overturns liberal precedent — even if that precedent is, in and of itself, unconstitutional.  It’s therefore no wonder the Left is dismayed by the fact that the Roberts court is tidying up the record and reversing preexisting cases enacted by activist judges.

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  • Bill Smith

    So, Thurgood Marshall is untouchable because he’s Black? Wow. There’s a righteous blow for equality! And, all precedents are untouchable, because they’re….untouchable? How about the precedents upholding Slavery? Upholding school segregation? Upholding denying Women the vote? Seems to me there’s ample precedent for overturning precedent. See, liberals like to play this Pavlovian game with words. They train you that certain words are sacrosanct, and then selectively apply those words when it suits them. And, it’s our fault that we let them intimidate us with that tactic. They were certainly not troubled by precedent when hailing Roe v. Wade. They love to twist language. On Monday we were informed that the Supreme Court had “extended” gun rights to all fifty states, and that our rights had been “bolstered” (NYT*). This was both a subtle, clever tactic to train you that rights are granted to you by government, and evidence — to the extent that some who used this tactic did so unconsciously — that liberals really believe that rights are granted, and thus can be “extended,” by government.
    Not in our country.
    Thanks to our Founders, We The People, through The Constitution, grant certain limited powers to government, and all other powers are reserved to us, the People. The right to Keep and Bear Arms was recognized, and stated in the Second Amendment at our founding. It wasn’t extended by this decision! And it wasn’t “upheld” either, because that implies that the court has the power to alter a Constitutional Right. The fundamental Right to Arms was, in my opinion, recognized, and used to overturn invalid laws that infringed** that right.
    I haven’t read the decision, but I have read with alarm that it has to do with the right to self defense in the home.  This is insane. The Second Amendment is not about your right to defend yourself with a firearm within the four walls of your HOME!! It is about your right to Keep — have in your personal possession — and Bear — carry with you — your firearms.
    Like to go out hunting? “Hunting,” after all, is the word liberals use to try to restrict ownership of military type weapons. That is, they used to say that The Second Amendment only guarantees the right to hunting and target rifles. Who hunts inside their house? If we have the right to go out hunting with firearms, are we now prohibited from defending ourselves with those same firearms while hunting unless we are hunting rats in the basement?
    And, if we are permitted to defend ourselves with firearms inside our houses, how about the front yard, or the hallway of our apartment house? From where in the Constitution does this specious penumbra of place emanate? What on earth does the majority think the Founders were specifying when they wrote “keep and bear?” The right to walk around with your gun in your living room? I can only have nightmares about what mischief that home defense nonsense will cause as liberals cite it to try to take away the right to carry (bear!!) outside the home.
    The Second was never just about, self defense. It was always about the citizens right, and ensuring their ability and the means to defend themselves against an oppressive government! This is what scares liberal statists.
    What always amazes me is all this elaborate head scratching over what the Founders meant, when what they meant is crystal clear from what they DID and did NOT do. Actions speak louder than words. After the founding of the new government, having just won their Freedom from an oppressive government after a ruinous, and bloody war fought by the citizens, they did not issue proclamations, or pass laws directing those same citizens to turn in their firearms to government run armories! (The specious militia argument) And, they did not start prosecuting people for carrying their firearms around with them outside their homes. Or, am I missing a penumbra somewhere?
    **If you want to know what “infringe” means, have you ever seen those parking signs that say “Don’t even THINK about parking here?” That’s what “infringe” means. Don’t even approach the very edge of this right.

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  • http://ymarsakar.wordpress.com/ Ymarsakar

    Conservatives are often not as precise in programming languages and phrases as the Left. Instead of judicial activism being the catch phrase, they could simply have said anti-Constitutional judges and there would have been few options open to the Left for him to spin.
    The Left back in 1930s were able to form a volunteer armed regiment of American volunteers to fight in Spain. It was called the Abraham Lincoln brigade. Peaches and cream, right. Patriotic, right?
    Well, the brigade was run, not by Americans, but by Communist commissars from Russia. They set this up to use Americans as cannon fodder in the fight for the Revolution in Spain. Almost nobody got back from the “wars” over there. And coincidentally, the Spanish Civil War was also the incidence in point where a lot of socialists broke ranks with their ideology. 1984’s Author is a case in point.

  • suek

    >>Conservatives are often not as precise in programming languages and phrases as the Left.>>
    Absolutely disagree with this.  Conservatives use language and  phrases as defined by the dictionary.  Liberals/Leftists twist words and phrases to mean something entirely different as it suits them.
    Now…if that’s actually what you mean – that Statists are more “precise” in “re-purposing” language and phrases – then I don’t disagree.  So…what precisely do you mean??

  • http://ymarsakar.wordpress.com/ Ymarsakar

    <B>Conservatives use language and  phrases as defined by the dictionary. </b>
    The dictionary only gives the denotative definition. It lacks the connotative definition. Which is the problem. When people rely upon the dictionary, they’re not dealing with the real world and how real people perceive things in the real world.
    It also suffers from local observer bias. If a particular segment of people use activist judges to mean one thing, and they’re all together talking about it, they will feel no need to consciously program in phrases to mean the same thing regardless of who hears it. They will be satisfied with simply communicating, in their local vernacular, to each other. They forget that activism only means what they think it means amongst their own local group, and for somebody else in Lib land, activism may mean good things, the opposite of what is thought to be meant. This is primarily a result of ambiguity.
    These phrases are often ambiguous. They mean a certain thing to the people that use them, but only because they have used them a certain way for a sustained period of time. But there are perfectly good alternative denotations or connotations to the term, word, phrase, etc. When I say “programming” the language, I mean to use it as a weapon, as a linguistics tool the same way we use a knife to cut vegetables. If it is not precise, if it is “ambiguous” we may end up being cut by it.
    So…what precisely do you mean??
    There are two things people understand when they hear something. The denotative definition, from the dictionary or aka what most people think the word means in the vernacular. And secondly, the connotative definition, or the local vernacular definition as used. Thus Negro and Blacks or African-americans were once connotative definitions associated with other words, until those “other words” got eliminated by the Left and they then created whole new phrases and words to mean the same thing. Then when the new PC word comes along, and the serf/slave minions of the Left are then denoted as the meaning associated with “black” or “African American”, all the old bad associations of crime, poverty, Ebonics, and etc get passed along and recreated anew. This is also a derivative of thought control. Attempting to mold and control language so that a certain thought cannot be expressed. Without the ability to count past 10, one has no comprehension of history and things that happened 1000 years ago to your ancestors as oppose to what happened to you 10 days ago. The Left hasn’t had complete success, but let’s not be complacent here. Their intentions are Full thought control, ala 1984 EngSoc. To eliminate the Concept of liberty and freedom itself from being thought of by human beings. Conservatives cannot defeat that without being as equally precise and powerful in their use of language.
    The proper programming of words and phrases in language, linguistics, allows the communication of specific information while excluding the information that was not meant to be conveyed. Thus there’s a break down of linguistics when the white woman sings a ditty about catch tiger by the toe, and the black woman perceives the meaning as a racist taunt. Conservatives have been put into this position by the superior ability of the Left to manipulate and control language, specifically English. (Now you know why they promote learning Spanish by gov fiat. Less people that understand English at a high level, more people that can be fooled and played)
    Ever wonder how it is that it is English majors and professors of Linguistics that are the biggest on getting children to spend their time learning Spanish? Nobody, I guess, thought that they were doing so in order to kill the competition.
    It is a mistake to think the Left doesn’t use the dictionary or know what the meaning of words are. You just have to look at the numerous names they give to legislation, like the Fairness Doctrine or the Union laws on vote disclosures for their members (card check), to see that they know exactly what the word means to the most people. So they use it to describe something that is the opposite, in order to hide and cloak things. But that’s how they use it. Linguistics is like any tool. It is like a gun. Whether it is good or evil depends on whether the user is a mass murderer of a law abiding citizen.

  • http://ymarsakar.wordpress.com/ Ymarsakar

    In capsule format. Conservatives need to understand and use the power of linguistics. NLP is a weapon in its own right.
    The Left has focused their efforts to develop this mental and cultural weapons while conservatives were focused on bombs and guns. Conservatives are, thus, ignorant of the Left’s weapons As Much as they are ignorant of firearms. Think about that for a second. The consequences are dire.
    Precision in the use of certain phrases must have specific connotative and denotative definitions that benefit us, and NO definitions that would detriment us or call our cause into question.
    All efforts must be made to avoid “ambiguous” terms that are good to “some” people and bad to “some other” people in this country. Phrases like Liberal or activism or terrorist should be replaced with specific, precise, and connotative/denotative definitions disadvantageous to our enemies and of benefit to our allies. Don’t let blacks on joke shows talk about how Timothy McVeigh was a terrorist and how we don’t need racial profiling because there are white terrorists and Arab terrorists all over the place. Just don’t let it even get to that. If you don’t use the word terrorism and invest it with your power, but use something exclusive, like blood thirsty Islamic baby killers, then you have something specific.
    The War Against Blood thirsty Islamic baby killers, rapists, and serial killers. That would have had a far different public reaction than the War on Terror.
    Prevent it from happening by seizing control of the language and owning the space. Conservatives are mighty good at that when it comes to foreign wars, philosophically. But when their eyes turn back to America, people too often start thinking in terms of bunnies and roses. Peace and cooperation. Get along to go along.
    The primary reason conservatives don’t use this is because it is closely related to dehumanization. By stripping the human from any terms you use to apply to your enemies, you target, isolate them, and then destroy them in the public mind. But it works because it is very precise, very specific, and has no lee way for “alternative explanations of what is is”.

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