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Is Judicial Activism the Panacea for Legislative Inaction?

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Recently, there have been a few interesting debates about what can be done to circumvent the harmful effects of sequestration caused by congressional inaction. The purpose of sequestration is best explained by President Barack Obama:

"The whole design of these arbitrary cuts was to make them so unattractive and unappealing that Democrats and Republicans would actually get together and find a good compromise of sensible cuts as well as closing tax loopholes and so forth. And so this was all designed to say we can't do these bad cuts; let's do something smarter. That was the whole point of this so-called sequestration."

We understand that the democratic process is, by nature, adversarial. When the forefathers drafted the Constitution, they deliberately made provisions for the fact that we needed more than one political party precisely because the founders disagreed on fundamental issues.

What bothers me about the president's statement is that it clearly acknowledges the fact that the government is not gearing its message to reach the everyday American family who will be most affected by the "bad cuts." Instead, politicians are gearing their messages toward... other politicians, who will always have a job and health care so long as they are reelected.

The word "sequestration" is in itself pundit speak that creates one more layer of alienation between struggling American voters and the inaccessible politicians who represent them. We know what across the board cuts are, but when you repackage that as a measure of austerity, we feel as though we are not qualified to have a conversation with our leaders. Aren't elected officials supposed to work for us?

Nonetheless, struggling families continue to lose homes, jobs, and health care while Congress fails to pass or even vote on various laws that are supposed to protect consumers.

Citing the Supreme Court's reluctance to invoke the First Amendment in commercial regulation cases, pundit George F. Will says perhaps we need to pressure Supreme Court activists to balance the scales. Will supports his position by citing a recent federal case challenging the Total Price Rule, where the airline industry argued that "the government is micromanaging their speech merely to prevent the public from understanding the government's tax burdens."

The U.S. Court of Appeals for the District of Columbia ultimately upheld the law, which requires airlines to advertise the pre-tax price of an airline ticket in a larger font than the additional 20 percent in taxes the consumer will also have to pay if they want to fly the friendly skies. Will concluded that:

Government is violating one of the natural rights that the Founders said government is "instituted" (the Declaration's word) to protect. This episode confirms conservatism's premise that today's government is guilty of shabby behavior until proven innocent. And conservatives enable such behavior when their unreflective denunciations of judicial "activism" encourage excessive judicial deference toward the modern executive's impetuous vortex.

(Anne tilts her head, shakes side to side, stares blankly at computer screen.)

What did you just say, George? Despite the fact that I have a bachelor's degree in political science from a top university and went to law school, I still had to whip out my trusty Miriam Webster's dictionary to translate this paragraph. For a minute there, I felt like I was back in law school using Wikipedia to translate the most recent Supreme Court decisions.

Will is correct that the Supreme Court should invoke the First Amendment more often to benefit consumers. The problem with Will's argument is that if the purpose of the law is to give notice to citizens of their societal burdens and benefits, the Supreme Court gets an "F" from me. The fact that in order to practice law, you must obtain three or more academic degrees, then pass the bar exam should tell you that lawmakers never intended for the average bear to fully comprehend the scope of their own legal rights.

In fact, there's an entire study aid industry dominated by corporations like Barbary, Crunchtime, Emmanuel's, and Kaplan which probably rakes in tens of millions in profits selling overpriced summaries of Supreme Court case decisions to desperate aspiring law students. The same law students will then go on to charge desperate litigants hundreds of dollars per hour to have a conversation with a judge on their behalf. If the average consumer wants to represent themselves, they likely will have to do it without the benefits of expensive databases like Westlaw and Lexis Nexis. You the average consumer will have to go to the local law library during business hours and pray that that their publications are still relevant. Even if the information is current, trying to understand case law this way is like trying to teach yourself a foreign language without Rosetta Stone. The consumer is still at a disadvantage in the courtroom, and will often be told by the judge to "go get a lawyer."

At the same time we lament cuts to education and the "dumbing down" of our news outlets, we also need to remember that government has an obligation to speak clearly to all citizens. If you love America for its diversity, bootstraps, and endless possibilities, you also have to accept that the people who built your house, carted away your garbage, prepared your dinner, babysat your child, cleaned your home, or washed your laundry are not burdens on society, they are valuable contributors whom our government is obligated to communicate with effectively.

It was, after all, bankers, lawyers, and politicians who crashed the economy, not carpenters, farm workers, and burger flippers. If we are going to use sequestration as an excuse to crack down on the poor's corresponding reliance on public assistance, then perhaps we need to demand more transparency from individual congressmen and judges to explain to us in plain language where our corporate welfare has gone. That would be a start.

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