by Matt Barr

Time for a new word besides "activism"

Eric at Classical Values broaches the subject of "judicial activism" now mostly meaning "things courts do I disagree with," much as (this is me, now, not Eric) "racism" mostly means "things people do I disagree with" and "neoconservatism" means "things non-Democrats do Democrats disagree with."

In my post I link to above I sort of offhandedly define "activism" as "setting policy that should be left to the legislature by way of reversing or repealing an act of the legislature the court disfavors." I'll still go along with that, but agree that the word/phrase is so overused as to be nearly useless now. As Eric notes (internal links omitted):

We've departed so far from the doctrine of "a man's home is his castle" that not only has the government expropriated personal and family life behind the breached castle walls, but citizens who don't like that can find the battered remnants seized and given to someone else. (Move aside, Magna Carta!)

Courts are not to interfere with this process, lest they be accused of "judicial activism."

But wait a minute! In Kelo the court didn't interfere, and now it's being accused of judicial activism! Yet in reality (and in logic) the holding was based on judicial restraint!

To the extent anyone is criticizing Kelo on the ground of "judicial activism," the concept has jumped the shark. I do though think it's important to be clear on what role one favors for a federal judiciary, lest you evaluate its opinions based on whether you would rather party with petitioner or respondent. I'm in a decided minority (and not invited to the meetings anymore) among libertarians in thinking that Raich, the medical marijuana case, was plausibly decided, for example, while policy-wise it rankles me as badly as anybody that Congress is horning in on what should be, as a matter of policy, a state matter. Not that anyone's running around looking for the secret to being like me, just as an example of what I'm talking about.

Attractive as it may be to skip down the street, handing out daisies to passers by and saying "the policy choice that maximizes personal liberty is the best choice," the problem is that our most fundamental liberty isn't regarded as a liberty anymore, it's regarded as a threat to liberty. Freedom of speech? Abortion on demand? No, the ability to participate in one's own government. When you're in the political minority on an issue, often, believe it or not, your rights haven't been violated. If you've had a full and fair shot to persuade a majority you're right and get them behind your issue, they've been affirmed. Sound Orwellian to you? How does it sound to say that in order to guarantee your rights you must not be involved in deciding what rights are important to you or even what they are?

Of course a setup that systematically, however infrequently, unduly curbs the liberties of (political) minorities simply by virtue of their having enough votes isn't tenable, either, and that's why our constitutional framework guarantees bad laws can and will be fixed. In a pluralistic society, everyone has a chance to be on the giving and receiving ends of bad laws. Self interest -- uninhibited by the superior wisdom of a court -- will ensure liberties aren't curbed for long, or even aren't in the first place. This is not an original idea of mine, by the way:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

Sounds fragile, I know, but the alternative is submitting to the fiat of the wisdom of the temple, binding the citizenry in perpetuity without their consent. Which is, of course, what we have now, and hardly anybody really cares, so long as the immediate consequences of the Court's opinions are palatable.

Imagine, if you can, a proclamation that says that henceforth throughout the land no law may be passed or enforced providing for capital punishment of an offender who committed his crime when he was 17. No sweat, you may say, not yourself being the victim of the crime, the victim's family, or the jury who had to endure hearing all the evidence against the loathsome cretin. But now imagine a proclamation that says that henceforth throughout the land no law may be passed or enforced exempting blogs from campaign finance laws. Is there a basis to support the former and not the latter beyond one being a blogger and not a heinous murderer? What's in it for me? isn't a sustainable approach to constitutional jurisprudence. It's how the legislature is supposed to work. Go figure!

When you buy into the legitimacy of a Court barring participation in the process of self-government, you need to take your medicine when you don't like the policy outcome. One consequence of failing to do that is that you run around calling decisions you disagree with "activism," when they're not. Another, more serious, is that you help marginalize the idea, still radical in the worldwide aggregate, that if people don't like the laws they're subject to they have the power to change them themselves. Once that's receded into quaint memory, we really may as well dispense with the "elections" nonsense.

What is "judicial activism"? It's forbidding the people from changing their laws, in the absence of a clear constitutional prohibition against passing the law in the first place. It's acting as though people can't be trusted to govern themselves. Nothing is more anti-American, or dangerous to liberty. It should be opposed with every whiff we get of it, whether we favor the immediate consequences or don't.

Bill James proposed in one of his books changing the bland term "assists" in baseball to "baserunner kills," which would encourage more people to pay attention to what really is an important part of the game. Let's change "judicial activism" to "judicial fiat," or something.

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