Strengthening Constitutional Self-Government

No Left Turns

What is Judicial Activism?

My view, as you know, is that we conservatives need to devote more energy to campaigning against judicial activism. But first we have to figure out what judicial activism is. Matt Franck--taking on the formidable NEW YORK TIMES--helps out a lot. If you want a refresher on my view, look at my article in the July/August SOCIETY, which can’t be found on-line yet. There I say, to make a long story short, that I’m more of a Scalia man than a Thomas man (although I great personal and theoretical admiration for them both). I’m opposed to both "social" and "economic" libertarian judicial activism, and so my position is in many ways the opposite of that of libertarian Randy Barnett. His thoughtful RESTORING THE LOST CONSTITUTION--which embraces Kennedy’s opinion in LAWRENCE v. TEXAS much more consistently than Kennedy himself does--can be found on amazon.

Discussions - 7 Comments

Thanks for the kind words, Peter. Like you, I find myself pretty much opposed to Randy Barnett on this business. I’ll look for your Society article.

For what it’s worth, and I know it isn’t worth anything to a person who likes to make a Pain of himself, this is the way I define judicial activism:

Any interpretation of the Constitution, which changes its definition, is judicial activism. Any addition (or subtraction) of words is activism. Here are 2 examples of judicial activism, one liberal and one conservative, by my definition:

Sixth Amendment to the United States Constitution

In all criminal prosecutions, the accused shall enjoy the right to... have the assistance of counsel for his defense.

By adding a single word, liberal activist justices have created public defenders’ offices. Now, in all criminal prosecutions, the accused shall enjoy the right to have the assistance of appointed counsel for his defense, if he cannot afford private counsel (Please do not assume I am in favor of abolition of public defenders’ offices. The criminal justice system would dissolve into chaos without public defenders. Such creations, however, could have, and should have, been brought about by legislation rather than judicial activism).

As a result of conservative activism, defendants now enjoy the right to the assistance of counsel at critical phases of the proceedings. Arraignments, for instance, are not considered critical phases of the proceedings, so defendants do not have the right to appointed counsel at arraignments. Rather than to add conservatively activist strands to the tangled liberally activist web we have woven, perhaps it would have been better, and not activist, to have stricken the judicially created right to appointed counsel and to have sent not so subtle hints to the various legslatures, state and federal, to legislate public defenders’ offices into existence and to define the proceedings in which defendants have the right to such counsels’ appearances.

More like Thomas? Scalia? BORK?

I have to admit, I tried my best to read Franck’s article, but it was just too much. It was every bit as moronic and stupid as his countless posts on bench memos. The man is a lunatic.

For what it’s worth, I agree with "ConfusedReader."

Given how close together the two posts were, we have to accuse MF of stalking CR. That would mean that CR’s last sentence, at least, is on the money.

For what it’s worth, this Matt Franck (the real one whom Peter Lawler actually saw smoke a pipe in the old days) did not write Comment 4--though I did write Comment 1. I suppose this is an unsurprising flaw in a Comments page that relies on the honor system when people identify themselves. My guess is Confused Reader is also confused about his identity, and for a moment thought he was me. Poor fellow; it is bad enough that I am me.

Why should we think that Matt Franck of comment 6 is more honorable than MF of commonet 4?

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