I initially overlooked this, as it rang stupid. I know, usually I catch stuff that seems stupid and bitch about it here, but this was different. Quite frankly, it was so stupid that I reflexively assumed it didn’t really mean what it meant. Picture the guy who got caught with his hands in the cookie jar and protests that “I didn’t do anything.” Of course he did something. The only question is what. So when that wizbang judge James Whittemore – you know, that brainiac whose ignorance of the phrase de novo probably cost Terri Schiavo her life – ruled that Judge Greer was not a state actor, I brushed it off, assuming he couldn’t possibly have actually meant that. Since then, however, in a lengthy and colorful debate with Patterico (commencing here), Patterico forced me to acknowledge what I initially overlooked: this lawtard really does believe that judges are not “state actors” for purposes of the Fourteenth Amendment or, by extension, the rest of the Constitution.

The issue came up in connection with the “state action doctrine,” a very basic rule of constitutional law that says in a nutshell that the Constitution (excepting slavery and bootlegging) applies only to government, not to private individuals. This may seem a little counterintuitive to nonlawyers, but when you think about it, not really. Everybody knows that the government can’t shut down the L.A. Times (no one said all good ideas were constitutional), but I can ban you from commenting on my site. Similarly, if you were to call into Heckle and Jeckle’s afternoon screamfest and get shouted down and hung up on before getting to say your piece, you could not reasonably complain that your First Amendment right to free speech had been violated. All this would change, of course, if you were able to prove that the FCC put Heckle and/or Jeckle up to it. The reason is that the FCC, being a part of the state, is subject to the First Amendment. Heckle and Jeckle, by contrast, are not.

With that in mind, turn to Judge Whittemore’s second ruling, denying a temporary restraining order for the second time that would have kept Terri Schiavo alive. By now Counts 1-5 of the original complaint are gone. So be it. Ignore Counts 6-7, too; they’re silly. Count 8 is frightening as all hell – it holds that states may kill you without clear and convincing evidence of your intent, or any other evidence for that matter – but as a constitutional matter it is not necessarily wrong. Skip ahead to Count 9, though, and you’ll encounter this gem:

“Michael Schiavo and Judge Greer are not state actors.”

As to Michael Schiavo, duh. Sure, he may work at the Pinellas County Jail, but it’s not as though that job gave him any advantage in attempting to legally murder his wife. But Judge Greer?! The guy who signed Terri Schiavo’s death warrant? On what friggin’ planet is he not a state actor?!

On Planet Earth, of course, he is. But on Planet Whittemore, apparently not. Just to give you a taste of just how good that shit Whittemore’s smoking really is, let’s consider where we’d be if the judicial branch were not considered part of the state:

1. Amendment I (freedom of speech): Fascist judges are free to enjoin any speech they want, as long as it is reasonably connected with the case they are ruling on. No state action, no First Amendment. Forget that silly case about libel plaintiffs having to prove the libel was false rather than the defendant having to prove it’s true. Let’s go back to the old common law rule. It’s all judge-made law, after all, and goes back to a time when judges were supposed to make law.
2. Amendment I (establishment clause): Former Alabama Supreme Court Justice Roy Moore gets his job back. There is, after all, no such thing as a “separation of church and court,” only a separation of church and state. If courts aren’t part of the state, Roy Moore has just as much of a right to display the Ten Commandments at his place of work as Jerry Falwell, James Dobson or Pat Robertson have to display them at theirs. As noted above, no state action, no First Amendment.
3. Amendment I (freedom of religion): Just as soon as one judge figures out that Islam isn’t really a religion of peace, watch for an injunction requiring all Muslims to convert to Christianity, Bahai, or some other, more benign religion.
4. Amendment II: Anti-gun judges would be free to enjoin any parties to their case from possessing firearms. No state action, no Second Amendment.
5. Amendment III: This is the one constitutional provision that has almost never violated (I’d say never if the Supreme Court had heard that one idiotic case). In Whittemore-land, no soldier can be quartered in your home without your consent, unless a judge orders you to provide such consent.
6. Amendment IV: Unreasonable search and seizure? No problem! Just get a judge to order it!
7. Amendment V (self-incrimination): The “state” can’t compel you to testify against yourself, but the judge presiding over your case can.
8. Amendment V (takings): If the “state” takes your property, it must provide just compensation. If a judge grabs it, TS.
9. Amendment V (double jeopardy): If you’re charged with a crime, the “state” can’t try you twice, but the courts can.
10. Amendment VI: The prosecutor can’t demand that the jury be dissolved, but the judge can.
11. Amendment VII: See Amedment VI.
12. Amendment VIII: If the Legislature passes a statute calling for a convict to be tortured to death, that’s not kosher, but if a judge comes up with the idea on his own, then hey, why not?
13. Amendment IX: Why did anyone care that Robert Bork thought this was an ink blot? It wasn’t going to apply to him, anyway.
14. Amendment X: Every aspect of state sovereignty is in the hands of any one federal judge.
15. Amendment XIV (equal protection): Separate but equal may not work for legislatures anymore, but separate and no pretense of equal is fine by the judiciary. Racist judges may exclude black (or white) jurors, rule summarily in favor of white (or black) litigants against blacks (or whites), etc. No state action, no equal protection.
16. Amendment XIV (due process): See James Whittemore’s opinion.