Even more possible decisions for a conservative activist court
By Bruce Walker
web posted March 28, 2005
I wrote an article several weeks about on the "Two Edged-Sword of Jurisarchy," which included some shots across the bow of Leftists who insist that government policy for all branches of government and at all levels of government be made by the top of the federal judiciary (be careful what you wish for, because you may get it.) A few days later, I wrote another article describing even more decisions that a genuinely activist conservative Supreme Court might make.
In this third article, I will describe still more possible decisions for a conservative activist Supreme Court -- a Supreme Court filled with conservatives who do what Leftists have done and use this aristocratic body to impose their will on the nation. The more Leftists consider whether or not to use the Supreme Court and its subsidiary federal courts to be the penultimate organ of government, the more that majority of Americans -- conservatives and other normal people -- openly ponder using federal courts this way, the more likely Leftists will understand the wisdom of the words "He who lives by the sword shall die by the sword" in "He who wins by the court will lose by the court."
What might activist conservative Jurisarchy do besides decisions that I mention in my two previous articles, both of which dealt with the federal government? Here are a sampling of such decisions that Our House of Lords, rather than Their House of Lords, might render in other areas of our federal system.
The Supreme Court, invoking the Equal Protection Clause of the Fourteenth Amendment, which provides that no person shall be denied by a state government equal protection of the laws, might strike down all progressive state income tax laws, holding that discriminating against a person on the grounds of income violates the Equal Protection Clause. This would leave state income tax laws with the ability to assess a proportional income tax law, but the Supreme Court could further hold that any law which requires a state taxpayer to pay more than another state taxpayer simply because he earns more violates the Equal Protection Clause.
Indeed, the Supreme Court could hold that property taxes which require one property owner under state property tax laws to pay more than another property tax owner violated the Equal Protection Clause. Or it might extend this principle and hold that states cannot discriminate against a person because he owns property at all -- that would violate the Equal Protection Clause.
What applied to income and property could also be applied to inheritance and to all economic transactions. Why should any person within a state be required, under the Equal Protection Clause, to pay more taxes than anyone else? The practical effect of this would be that state governments could assess a per capita tax -- an equal tax on each person in the state -- or it could assess an adult per capita tax -- a tax on each adult in the state.
Although many people would find this inherently fair -- do we "buy" more state government benefits because we earn more or have more, or is it instead the other way around: that we require less of state government, the richer we are? -- if the Supreme Court so ruled, given the omnipotence now placed in that body by Leftists, then state revenue law, like state abortion law three decades ago, would become the province of nine geriatric Americans.
The Supreme Court could rule that states that require unions when fifty-one percent of the members of a factory vote to have a union violate the "freedom of association" right discovered by activist judges in the Due Process Clause of the Fourteenth Amendment. Suddenly, no one in Michigan, Pennsylvania, Ohio or Illinois who belonged to a labor union as a condition of his employment could be required to continue to belong (or pay dues equivalent to membership) in that union. One of the principal pillars of Leftist political muscle would quickly whither and die if it was entirely a free and voluntary association.
Indeed, there would be nothing to prevent some workers in a factory from forming their own free and voluntary association of labor, unregulated by state or by federal laws, and other workers could form their own free and voluntary association -- and management could negotiate or not negotiate with them as it wished. An enormous load of inefficiency in our economy would vanish overnight, along with vast amounts of political power for the Left.
An activist conservative Supreme Court could also rule that accreditation and credentialing, except when it was voluntary by the individual, violates the Equal Protection Clause of the Fourteenth Amendment. Why should state governments be able to decide, for example, that someone with a degree in Education who understood physics poorly could teach physics, but that an engineer who understood physics very well could not?
All of the tentacles of regulation, indirect taxation and limitation created by state government control over professions -- all of which could easily be replaced by voluntary regulation with goodwill and trust as the security for transactions -- could be severed by one single decision. People who knew subjects could teach children those subjects; people who knew accounting could practice it without passing tests; people who understood human nature could practice psychology.
The more we think about it, the more we may want an activist Supreme Court. What we call "constitutional law" today is simply decades of Leftist priests divining the entrails of goats. "Constitutional law" is more than just bootstraps: it is bootstraps pulled up with skyhooks: it is whole cloth. Perhaps the best way to end the unconstitutionally created artificial constitutional amendments known as "constitutional law" is through an aggressive, militant and unapologetic conservative Supreme Court. Perhaps the more we talk like that, the less Leftists will deify the Supreme Court and lesser gods. 
Bruce Walker is a contributing editor with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
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