A foolish consistency may be the hobgoblin of little minds, but how should we think about conservative inconsistency on judicial activism? Is such inconsistency wise, self-deluding or just plain dishonest?
Take the case Justice Antonin Scalia who has no problem with judicial activism when he finds it convenient.
And in this Right Wing News interview, an anti-ACLU attorney cites Justice Brewer writing for the majority in an 1892 Supreme Court decision. Jay, from Stop the ACLU exclaims:
This is a Christian Nation! And we ought to be damn proud it is! Because it is only in Christian Nations where you will find freedom of religion. We are a Christian Nation, and the U.S. Supreme Court said so. The Supreme Court in HOLY TRINITY CHURCH v. U.S. that this is a Christian Nation. That is our history. The history the ACLU wants to erase."
But a look at that opinion reveals that the rationale offered by Justice Brewer is hardly consistent with strict constructionism: Brewer wrote:
"These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation."
So what are we to think about a right-wing attorney citing this court opinion to support his own contention that the United States is a Christian nation? Has the right given up on strict constructionism in favor of the mass of organic utterances approach to the constitution?