Stephen’s Statements A little bit of everything from Stephen Duncan Jr, a Software Developer in Portland, Oregon

Monday, December 6, 2004

Judicial Activism

Activism ain't just a river in Egypt -

This is undoubtedly true. But that doesn't mean that judicial activism doesn't exist; it just means that it's a bipartisan vice. Even if the normal political usage of the term isn't strictly objective, one can still define what judicial activism is--broadly, starting from the desired result, and then reasoning backwards to the decision, as the court did in Roe v. Wade, and a lot of other cases.

I think that's a bad thing, even when I support the result; while I'm ambivalent about Roe, I'm certainly not about Lawrence v. Texas (I'm in favour of the result, if you had to ask), and yet I think that Scalia probably had the right of it: the constitution nowhere empowers the federal government to decide what we may, or may not do in bed, nor to prevent the states from deciding.

An interesting, detailed essay on judicial activism. I'm not in agreement with everything, but it's a good starting point, so read it!

I agree in the details of the results: the "rights" created do not appear in the Constitution, and should therefore be relegated back to legislative action at whichever level of government is appropriate. But, I believe this because I believe that the desirable end-state is a government severely limited by a Constitution. This can only be acheived if the consitution is treated in a manner that gives it power: holding government strictly accountable to it, and only it. Made up rights weaken the power of actual rights in the Constitution, and make it harder to strictly enforce it.

I'm not certain I've disagreed yet. Here's where I differ: I'm not interested in the concept of the Consitution as merely providing the necessary framework for democracy to be exercised. I'm not interested in democracy at all. Democracy is the least-of-all-evils method of government. It is necessary, because it's the only form of government that is somewhat stable: all other forms have a built-in prejudice towards revolution. But Democracy is only desirable for this pragmatic reason. Otherwise, it has no particular tendency to produce the best results in terms of good government, and is not an ethical ideal to strive towards. I'm interested in a Constitution to provide a form of government conducive to free living, with democracy as the method of choice to deal with the times that we can't be left alone.

But enough of being the contrarian. Judicial activism is a danger to an enforcable Constitution, and should be fought against, even when it creates rights we find desirable. The proper procedure is to get back to a strict interpreation of the Constitution, and then add amendments (if you can convince enough of your fellow Americans) for rights that are both desirable and important.

Update: I should read the comments on blog posts before I make my own. Ken makes a good point:

There's a big problem in determining whether a particular judgement makes Constitutional sense or not: the text of the 9th Amendment.

It explicitly denies the very possibility that we can say that something definitely isn't a right of the people that the government is bound not to infringe. It tells us that there are rights that aren't explicitly mentioned in the Constitution, but doesn't offer any real clues as to what those rights are.

The Ninth Amendment does make it tricky to decide what is activism, and what is proper use of the Constitution. On the one hand, JaneGalt's focus on democracy would indicate limited application of the 9th; my preference towards a focus on the Constitution as a limited reagent would lead to a larger use of the 9th amendment. Nevertheless, I think it's necessary for the sake of properly framing the debates in American politics to distinguish between explicitly-protected rights in the Constitution, and those left un-stated, and treat them with a different level of protection.