Professor Stephen Bainbridge, of whom I have a very high regard, posts the following curious entry on his blog entitled, Should Conservative Be Cheerful?
Insofar as one may draw inferences from his letter to the editor in today’s WSJ ($), Robert Bork still thinks we’re Slouching Towards Gomorrah, and he knows where to lay the blame:
The barbarians are no longer at the gate but inside and there is no end in sight to the damage they are inflicting. … American courts, state and federal, having enlisted in the culture war on the side of the elites, are leading the procession to the moral anarchy of radical personal autonomy. … As Justice Scalia put it in one dissent, “Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize.”
Yep. This is why I find the sort of judicial activism advocated by libertarians like Randy Barnett no less threatening to democratic values than the sort advocated by left-liberals like Larry Tribe or Erwin Chemerinsky.
This comes after another post entitled Libertarian Judicial Activism, which says:
I find libertarian judicial activism of the sort Randy Barnett espouses no less offensive than the left-liberal judicial activism that we usually see.
Both posts invite the question: what exactly IS judicial activism? Unfortunately, apart from his reference to “democratic values,” Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:
Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony?
Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in the Tempting of America?
Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?
Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?
Surely Professor Bainbridge would not encourage conservatives to remain as uninformed of the meaning of all these crucial provisions as Robert Bork proved to be in the last book in which he opined on the Constitution. Or do they all just happen to have no discernable meaning, and no constitutional purpose, despite what they apparently say?
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. Without a conception of “activism,” we just do not know exactly why Professor Bainbridge is offended. No doubt he has a sophisticated view of this issue or he would not be casting stones, but merely invoking “democratic values” will hardly suffice.
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 Judial 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 called activism.
But for some modern judicial conservatives (not to be equated with all political conservatives), activism does mean something rather specific that they do not always articulate clearly: Activism is any deviation from the judicial philosophy of the Roosevelt New Deal judiciary, as enunciated in the first sentence of Footnote Four of U.S. v. Carolene Products that reads:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
In other words, enforce only some of the rights enumerated in the Bill of Rights–judicial conservatives often seem unsympathetic to enforcing the Fourth and Fifth Amendments–while generally ignoring the enumerated powers scheme (though judicial conservatives are divided on this). Above all, ignore the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.
In short, today’s judicial conservatives are simply unreconstructed Roosevelt New Deal jurisprudes. Indeed, it was the political Progressives who first coined the term “activism” to describe the Supreme Court that tried to enforce, however imperfectly and incompletely, the textual limits imposed on federal and state power by the written Constitution. I mean no offense by this comparison. But Roosevelt New Deal jurisprudence is hardly derived from a commitment to or evidence of original meaning. Nor is it a risk free approach to a Constitution that was put in writing not only to empower a federal government, but also to limit its powers, and a Fourteenth Amendment whose sole purpose was to limit previously undefined and broad state powers. At crunch time, judicial conservatives choose Roosevelt over Madison.
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.
No meaning of any constitutional provision can be established in a blog, which is why I wrote Restoring the Lost Constitution: The Presumption of Liberty. If I am right about the original meaning of the clauses that I have examined, however, then my “activism” derives from the framers and ratifiers of the original Constitution–who as I show in my book were no fans of democratic majoritarianism–and those who drafted the Fourteenth Amendment, who were no fans of unlimited state power. Ultimately, what offends Professor Bainbridge is their words, not mine.
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