Strengthening Constitutional Self-Government

No Left Turns

Ed Whelan on Rosen’s Misguided View of Judicial Activism

Bench Memos blogger Ed Whelan offers a stinging critique of Jeff Rosen’s recent New Republic article, in which Rosen misuses the term "judicial activism." Given recent conversations here about the propriety of a neutral definition of judicial activism, it is worth quoting at length:


But Rosen counters . . . [with the] continued misguided advocacy of a “neutral meaning” of the term—under which any vote to strike down legislation, even when clearly compelled by the Constitution, is not an exercise of judicial restraint, and any vote, no matter how wrong, to leave legislation in place, is an exercise of judicial restraint. The terms “judicial activism” and “judicial restraint” necessarily tie to the proper role of the courts in our constitutional system, and their proper definitions depend on a sound understanding of what is, and what is not, correct constitutional interpretation. Rosen’s argument for a “neutral” definition of these terms would neuter them of their natural and useful meaning. Rosen might as well argue for a “neutral” definition, say, of “firefighter” and “arsonist”: a firefighter who sets a small fire in order to prevent the spread of a larger fire would be labeled an “arsonist”.

Even worse is Rosen’s supposedly neutral counting of laws that justices have voted to strike down. Thus, a decision like Roe v. Wade, which has usurped the powers of American citizens, and distorted American politics, for more than three decades counts has the same value in Rosen’s ledger as any other vote to strike down legislation.

Take a few minutes and read Whelan’s whole post.

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