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May 09, 2004

Light That Fuse And Run Like...

Randy Barnett has a long, but interesting post on judicial activism, which I throw out to annoy and confuse the enemy. Although perhaps having posted on Mother's Day, I'll be immune from counterattack. A few excerpts:

Judicial "activism," as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error.
Either striking down ANY properly enacted statute is "activism" because it thwarts the "will" of a majority of legislators, in which case all judicial review is activism, notwithstanding the original meaning of "the Judicial Power" in Article III. Or before hurling the charge of activism, we must first decide whether a statute violates the original meaning of the text. This is something that requires evidence and effort, and many use the epithet "activism" to avoid messy issues like determing the meaning of the Constitution. Far easier is it to accuse judges of practicing, or law professors of favoring, some sort of vague "process" impropriety (improperly?) called activism.
If one must use the epithet, the only sensible and neutral definition of "judicial activism" is when judges for whatever reason choose to ignore the written Constitution, whether to uphold or strike down legislation. Just as some modern progressives would have the courts ignore those passages of the Constitution that conflict with their conception of "justice," modern judicial concervatives would have courts ignore those passages of the Constitution that conflict with their conception of "the rule of law" because they are not specific enough for their tastes.

Enjoy :)

- Cassandra

May 9, 2004 at 11:22 AM | Permalink


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What a coincidence! I've just been reading a piece on this subject by Robert Bork in the current issue of The New Criterion. It's called "Olympians on the march: the courts & the culture wars." It doesn't seem to be online, but it's worth hunting up.

Posted by: George at May 9, 2004 1:44:30 PM

I'll have to look for it. Thanks for the heads-up.

Posted by: Cassandranita Gutierrez at May 9, 2004 1:50:42 PM

Scalia is a liberal compared to Bork.

A slut: someone who gets laid more than me
An unsafe driver: someone who drives faster (or slower) than me
The rich: those who make more money than me
A judicial activist: A judge that rules in a way different than I would have


Happy Mother's Day Cass and the rest of you Jet Noise maternal figures.

Posted by: KJ at May 9, 2004 7:40:58 PM

KJ: I see you're still feeling ornery? :)

Thanks - so far it's been a good day and you made me laugh as usual.

Posted by: Cass at May 9, 2004 9:26:50 PM