Strengthening Constitutional Self-Government

No Left Turns

Still More Judicial Activism

Thanks to Robert Alt for his challenging comment below. The amoral or merely behavioral definition of activism is whenever the Court acts to substitute its will for that of the legislature. Now its will may be based on a correct judgment concerning the meaning of the Constitution, but the FEDERALIST 78’s radical distinction between will and judgment seems deliberately simplistic or rhetorical. Tell me that MARBURY v. MADISON, to begin at the beginning, wasn’t willful. Activism is not all bad, it goes without saying. I’ve defended BROWN more than once on this screen, and that was big-time activism. We can’t deny the fact that the Court actively altered an important aspect of local policy making in the recent decision. In general, the Court should be following the restrained strategy of getting out of the social policy-making business today. But in the area of race some activism in unavoidable, simply because the Court has failed to give clear and consistent guidance on the meaning of the Fourteenth Amendment over the years. Some remedial activism is the only way to rescue legislatures at all levels of government from, in large part, Court-created confusion concerning what they may do under the Constitution in pursuit of equality and diversity.

Discussions - 2 Comments

Sorry Peter, but no matter how you try to spin it, it is not "activist" to enforce the text of the Constitution. The pecking order here is the Constitution, then the legislature, then the common law. It seems to me that the Roberts/Alito/Scalia/Thomas contingent follows this model pretty well.

You would be right only if the Const. is what the Court says it is or something like that. Our law is made by legislatures and is presumed to be constitutional, and courts ordinarily defer to them. It's way too simple to say it's not activist to enforce the Const. As a simple statement, it's true enough. But what the Const. means will always be a mtter of controversy, and each branch ordinarily interprets it for itself.
You, I fear, have fallen into the judicial supremacy trap.

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