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The Disingenuous Expansion of Judicial Activism

I caught the Bill of Rights Institute's debate between Angelo Codeville (Claremont Institute and Boston Univ.) and Jeffrey Rosen (New Republic and George Washington Univ.) on "Interpreting the Constitution" in D.C. on December 15.

Rosen took up the liberal position, and continued the trend - common amongst the left since the Citizens' United case - of expanding the definition of "judicial activism" into meaninglessness. This precise issue of definitions came up in the Q&A, and Rosen attempted to eschew any use of the term (as counter-productive) before including any judicial review of a law within the meaning.

The left long ago attempted to expunge the derided label of "liberal" in favor of "progressive" (John Kerry's unconvincing plea that "liberal" wasn't a bad word notwithstanding), and they are now attempting a similar linguistic manipulation. Rather than saying that they don't favor "activism," they assert that conservatives also favor the practice, and so we might as well shift the conversation elsewhere.

I assume most liberals recognize the disingenuousness of their argument. Marbury v. Madison expressed the valid definition of judicial review to which conservative scholars subscribe: should an act of Congress and the Constitution contradict, the Constitution wins - and the courts are required to enforce the law of the Constitution. Judicial activism seeks to remedy perceived social ills through the courts, in order to circumvent the unenlightened laws of a democratic majority, by empowering courts to strike down laws which are not in conflict with the Constitution, but (in the view of the proponent) should be.

The latter exalts the judicial branch over the legislative as a sort of enlightened priesthood, enforcing a particular social preference on the evolution of American society - it is anti-democratic, philosophically indefensible and contrary to America's constitutional design. Exalting the constitution (as per the conservative view of judicial review) is entirely different from exalting the Supreme Court (the result of liberal judicial activism).

Liberals must not be permitted to muddy the waters by masquerading activism as a central judicial responsibility. Judicial activism and review may have the same result in a particular case, much like murder and self-defense may both result in the same lethal result, but the rationale and intentions are fundamentally diverse. Liberal scholars are not unaware of this distinction, and act shamefully in attempting to obscure their goals. 

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They must not be permitted to muddy the waters, but they will and generally get away with it. The problem is a social and cultural one, and has begun to manifest itself in occidental countries with disparate constitutional histories, quite ferociously in Canada, which had no history of judicial review prior to 1982, bar for jurisdictional questions.

Highly educated people like Rosen are continually irked that elected assemblies are populated with and responsive to people with tastes and sensibilities quite unlike their own. They respond by using their position in institutional life to place the bar in a position to supervise all other sectors of society, with franchises granted to academe and the mental health trade. The press and the entertainment complex are left alone while the rest of the business sectors are harassed.


It is all a big fraud and it is not going to end until the rest of society takes their toys away and sanctions them severely.

Judicial activism may be "anti-democratic," but I'm not sure that it is "philosophically indefensible" to have reservations about majoritarian rule.

A cynic might argue that the Federalists were also 'anti-democratic' for the kind of government they prescribed. That may be, but they recognized that popular government could be observed while recognizing its excesses. This is the great object of republican government.

To be sure, judicial activism undermines majority rule, but far more importantly it undermines the rule of law. It makes not a democratic regime, but a republican regime dedicated to the rule of law, impossible.

In the last analysis, the wise ruler may be preferable to the rule of law (because of his flexibility), but part of the political problem is characterized by the scarcity of wisdom. As Jaffa says, the man taking the title to rule by virtue of wisdom is an "unwise adventurer, discredited in advance by the fact that he has advanced such claims."

Sonya Sotomayor is the representative of this spirit. She famously called herself a "wise Latina." She claims to be the philosopher-queen of the Republic. The improbability of such a regime is something we may want to consider.

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