Principled Activism:
In an essay, In Defense of Judicial Activism, Damon Root argues that the Constitution should be interpreted as a libertarian document:
Anyway, Root's essay is largely a response to Judge Wilkinson's critique of Heller. If you haven't read Wilkinson's essay yet, it's worth a read. (Hat tip: Instapundit)
What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.Isn't it sort of misleading to say that this form of judicial activism would be "principled"? I suppose you could say "principled" just means "following a recognizable rule or methodology, whatever it is." In that sense, such activism would be principled. But if we take that view, everything is principled. Always ruling for the white guy would be principled, for example: The principle would be that the white guy always wins. Similarly, it would be principled for the Court to rule for petitioners on cases argued on Mondays and for respondents for cases argued on Tuesdays. If it's principled to always interpret the Constitution in a libertarian way even if the particular text, history, and meaning doesn't warrant it, then I would think that fidelity to the Constitution requires more than just being principled.
Anyway, Root's essay is largely a response to Judge Wilkinson's critique of Heller. If you haven't read Wilkinson's essay yet, it's worth a read. (Hat tip: Instapundit)
Orin Kerr not = Randy Barnett.
Consequently, I think it can completely count as principled to adopt the theory that the Constitution should be interpreted in the most libertarian way reasonably possible, if you think libertarianism is the objectively correct political philosophy. It's not like a commitment to some form of originalism follows from libertarianism by the force of pure logic.
I can certainly see the validity of the argument Prof. Kerr is making-- that "principled" refers to fidelity to the text of the Constitution.
But "principled" could also refer to someone's consistent fidelity to a particular interpretive principle, e.g., originalism, textualism, judicial restraint, or, yes, a presumption in favor of liberty.
What makes someone principled is that they are willing to stand steadfast in the face of attack rather than ignoring what they claim to believe in when they don't like the result. But the term "principled" doesn't describe the content of whatever it is that is being defended.
And -- this is the important part -- they're often arguing against a proponent of "judicial restraint," a la Bork or Graglia, say. These restraint guys, in turn, are responding to liberal interpretation that they see as result-oriented (and thus "unprincipled," in their view, based on the very common rule-of-law idea that being results-oriented on a policy level is bad) and/or not in line with the real Constitution; but rather than embracing, say, originalism, they instead embrace some form of "restraint."
So their argument is not libertarianism vs. originalism, claiming that libertarianism is "principled" while other methods aren't. (You can argue that libertarianism is right, but it's silly to argue that it's the only principled method.) Rather, their argument is that not all "activism" is "unprincipled," but an originalist activism is in fact principled, and that activism would end up happening to be libertarian because of their view of what the Constitution requires.
Now this may well be wrong on the merits, but it does provide a coherent account of what it means to be principled.
(By the way, I do think that most originalists don't exactly claim to be 100% originalists, but they say (or would say) something like: If originalism were to produce sufficiently morally repugnant results, then a revolution (which of course is not consistent with the Constitution) might be called for, but within the broad range of bad (or even immoral) results that don't rise to that level, 100% originalism is correct. This is part of why I'm not an originalist....)
I haven't talked to Paulsen, but I'll be seeing him next week and I'll ask him. You're right, he may be the best hope.
(1) They give answers that formally look originalist, but you think they're wrong on the originalism; or
(2) They give answers that are non-originalist on their face?
I'd think (1) is very common because of people's natural tendency to read the sources to favor their previously held view. But that's not a refutation of their originalism, it just means their originalism is incorrect and biased by their views.
But, turning back to the question raised in the post, I recommend against becoming embroiled in a debate about the meaning or application of labels, such as "libertarian" or "judicial activism". As a great English teacher once admonished, "Don't label. Describe." Here are a few descriptions that can be applied to court decisions to which some might object:
1. Sustaining an official act not proved to be constitutional.
2. Overturning an official act not proved to be unconstitutional (by the text or whatever).
3. Basing a finding on sources of law not provided by the main litigants, such as intervenors, amici, or a judge's motion sua sponte.
4. In an effort to reach a narrow finding, failing to take advantage of the opportunity to resolve all or at least the most important issues raised, opening the way for more litigation.
5. Writing dicta that confuse the findings and open the way for more litigation.
I submit (5) applies to both Roe and Heller, but that is a different kind of criticism than that made by Wilkinson.
(1) and (2) need to be examined more closely, because they go to the heart of whether the courts will adhere to the right to a presumption of nonauthority, a fundamental right I find in the Ninth Amendment, and which Justice Scalia seems to see as an inkblot.
Both, although (2) in particular. The clearest examples are affirmative action and campaign finance reform.
Jon Roland,
You don't seem to understand my view, and I know that I cannot understand yours.
That is an intractable fact that in some ways seems obvious enough, though it doesn't appear Damon Root would agree, since he seems to assume there is a deeper principle that can be unearthed, sufficiently explicated and then relied upon by jurists.
I also disagree with Root's analysis of McCain's voting record (indicated in the video). A senator can vote to confirm a particular President's nominee for the Supremes or other federal judicial appointments - yet also set a higher or different standard for choosing a nominee in a hypothetical situation wherein he would be the President.
By contrast, the different argument Damon Root forwards, again in the video, contrary to Obama's commentary (contra Justice Thomas) is convincing and is in fact one of the now standard and widely accepted arguments in that vein.
With that caveat, I'm sure Root has a more formidable idea in mind, but he does not present it in a very formidable or persuasive fashion. It's essentially an idea that would require a book-length treatment to be more successfully argued, imo.
So originalism is a process of discovery, not a final position. We all have things to discover from deep investigation of the Constitution and its underlying principles.
I believe the difficulty is that the source for your interpretive principles appears to be your own personal sense of how the world should be, not what the Constitution itself says or meant.
That's a easy way to try to dismiss disagreement, but it is incumbent on you to be specific and provide argument to support your position. I have cited many works of history and law that support my statements, with links to the works themselves. I have not seen comparable supporting materials for your positions.
For example, you have cited areas of disagreement as affirmative action and campaign finance reform, and I have stated my positions on those issues (in a highly simplified way, given the practical limitations of this forum). Yet we have not gotten (or at least I have not seen), an extended exposition of your position. Perhaps you would like to write an article and put it on SSRN so we can all examine it conveniently.
I think you are right, which is why Wechsler didn't call his piece, "Toward Principles of Constitutional Law." He called it, "Toward Neutral Principles of Constitutional Law." The question is whether "the individual always wins" is a neutral principle, not whether it's a principle. Perhaps the more sophisticated way of thinking about it is whether the principle is more neutral than other alternatives.
One of my proposals on this point is to always have judicial decisions made by either a jury or a multi-judge panel (randomly selected) and to require unanimity to sustain a claimed official power against a claimed immunity to such exercise. It is a natural extension of the same principle applied in favor of the defendant in criminal cases, to civil cases in which the government is a party or stands behind a private party as its surrogate.
This would apply to the Supreme Court. It should decide against the government unless the justices are unanimous.
So they claim, but has anyone seen them together?
P.S. Heller took a big hit here too.
Arguably, upholding individual liberty and strictly limiting state power is exactly what our Constitution was intended to achieve and, if that's the case, then it wouldn't be judicial activism to interpret it in that fashion.
"What is the limitation, sir? Simply this, that the care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country." --John Bingham
This starts with a straw man, then proceeds to pick it apart with rhetoric that demeans the whole notion of principled anything. It's clear that individual liberty and limited government were abiding principles for this country's founders, who would surely cough up their last meals if they could see what a mess has been made of their vision.
So, 1) you see the principle in question with notable clarity and 2) just as clearly, you see the 2nd Amend. as being applicable strictly to state governments' militias, or, to excerpt from the final graph of your previously supplied link:
"I will quickly close by saying the Second Amendment right to keep and bear arms means only the right of the people under their own State governments shall never be infringed from organizing and maintaining armed militias for the purpose of a collective security for themselves. The word “arms” had the universal understanding to mean arms of the militia and not general firearms used in civil society."
Good to know.
That is one of the dumbest positions I have ever heard.
Let's play a thought game. I make widgets, and you buy them. We have a production contract that sets the price based on a formula. I jiggle the invoice for one shipment and jack you on the price. The next shipment you notice and call 'not fair'. We get Wilkinson as a judge, and he announces that since I screwed you once, now the contract reads that I get to do it every time.
That is exactly what he is claiming for Heller. The Supremes heard a one sided case in the depression, ruled badly since it was one sided, and liberal panels in the third, sixth, and ninth circuits expanded that one party case into there being no right at all in space marked second amendment in the constitution. In Wilikinson land, the liberals win and there is no right there ever again.