Judicial Activism...I'll Know It When I See It - UPDATED

Anytime I hear anyone toss out the term "judicial activism" in conversation, I have a nearly unstoppable urge to yell "time-out" and have the person give a detailed explanation of the term.  I don't, but inevitably I will begin to hear the word "inconceivable" in my mind every time someone says "judicial activism".  Fans of the movie,  "The Princess Bride" know where I'm going with this.  In the movie, Vizzini persistently interjects the word "inconceivable".  Finally, Inigo Montoya says to him, "You keep using that word. I do not think it means, what you think it means."

Let's be clear what isn't judicial activism.

• Declaring a law invalid alone, is not.
• Declaring a law valid alone, is not.
• Overturning judicial precedent alone, is not.

So what would be judicial activism?

• Declaring a law invalid despite a historical and constitutional basis for the law, by finding an interpretation of the pertinent textual language heretofore unknown.
• Declaring a law valid despite a historical and constitutional basis for the law, by finding an interpretation of the pertinent textual language heretofore unknown.
• Overturning precedent despite a historical and constitutional basis for the precedent, by finding an interpretation of the pertinent textual language heretofore unknown.

In between, there is a gray area, which is why the court will often render 5-4 decisions rather than 7-1 or 8-0.  But in plain speak, judicial activism is when the court shapes the law to fit their predetermined decision.  Often the supporters of a decision will seek to avoid any discussion of the merits of the case because the courts interpretation is laughable.  Consider the dissenting opinions of Justices White and Rehnquist for Roe v Wade. 

"I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers..."(White)

"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion."(Rehnquist)

Abortion supporters often speak of the importance of this decision, but they avoid any discussion of its judicial merits.  Even his supporters were bewildered by Justice Blackmum's decision.  Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote:

"it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.

As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."

Where the court fails to find constitutional standing that an action by the state is a usurpation of the people's rights, those matters should be left to the people and the political process.  It does not matter whether the action is good or evil, fair or unfair; it only matters whether it is a prohibited action of the state.  The constitution specifies the powers and duties of each branch of government and in the 10th amendment says all other powers are to remain with the states and the people.  This does not mean the court should remain silent.  In fact the court is the last stand protector of the people.

It also must be remembered that the constitution is the truest exhibit of democracy.  It's origin and all amendments must pass as a referendum, a vote from the people, not simply from their representatives in Washington DC.  Where it conflicts directly with the laws of Congress, the constitution should prevail.  As Alexander Hamilton, in Federalist no. 78 has stated,

this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Rather than the whims of our elected officials, the constitution stands as the truest reflection of the will of the people and the standard by which the laws should be judged.  Since Congress receives its authority from the constitution, its laws cannot stand above the constitution.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal....that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. (Hamilton)

At the time of its writing, it was feared that there would be no hindrance, no lever to keep unelected judges from superseding their authority and placing their judgement above the constitution.  While their independence allows them to act as a safeguard against society; to protect the rights of classes of people, they must serve the constitution and not their own will.

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. (Hamilton)

The will of the people is expressed in the written words of the constitution.  When those words are twisted in order to give life to rights and powers never granted by the people, for service to the will of the court, judicial activism is thrust upon us.  When the court uses its power to alter the constitution's meaning, a shifting standard is created that renders its authority unknowable to the people


The structural remedies to such behavior has now lain dormant over the centuries as the other "stronger" branches have abdicated their duty.  The political penalty for such an exercise today as impeachment or withholding funds would be too great for our elected leaders.  So we are left with the only tool we have in fighting judicial activism - enlightenment.


The people must be made aware of the crimes being perpetuated on them as judges overstep their constitutional authority.  Only by being enlightened to what the constitution says, can they judge for themselves whether the court has acted appropriately.  When they can see with their own eyes that elections have consequences for the court, elections will tend toward substance and away from the frivolous.  With that I offer a case to examine.


Citizens United v FEC - overturned limits on corporate spending.  It held that money spent in support of candidates is a form of free speech.  The constitution is clear on free speech rights.  Under this decision individuals, labor unions and corporations will be treated equally.  To deny corporations this right, would be to say that a group of employees (unions) would be granted rights that a group of business owners (corporations) would be denied.  The ruling maintained a ban on foreign donations.

• Are political donations an element of free speech? Yes
• Can the government abridge the free speech of a group of citizens?  No

Most court decisions, after all the lawyer speak, can be summed up very briefly.  The case making its way through the courts at present is the constitutionality of Obama's Health Care Reform.  It's question is very simple.  Does the constitution provide the Federal government the authority to compel an individual to purchase a product?  Is the individual mandate portion of the HCR law constitutional?


The state governments, as the 10th amendment espouses, hold greater power over the individual than the federal government and many of them compel a purchase of auto insurance.  But, only those who wish to drive on the public roadways are so obligated, so the state is not truly compelling the free right of individuals to refrain from this activity.


The most recent decision by a Federal judge has found a constitutional authority to regulate such inactivity.  Here is federal Judge Gladys Kessler own words in her ruling.

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power....However....Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. 

Cornell law professor William Jacobsen's take,

Our thoughts are now actions.  There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.

Our thoughts are now actions.  Whoops, I already said that.  I just can't get over it.  The following sentence has now become a justification for regulating decision-making even where the decision is just to do nothing:

The Congress shall have power.... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

I think I'm going to be ill.  Which of course, is now subject to regulations to be promulgated by the Secretary of Health and Human Services.

Justice Stewart in speaking of pornography, said, "I shall not today attempt further to define it ...But I know it when I see it".  Many try to make the same claim of judicial activism.  Outrage may follow even the most sensible of court decisions, often reflecting the high emotions of the opposition.  Yet the most insidious usurpations have met little resistance.  But while the mood of the people will ebb and flow through the generations, the constitution must not.  The constitution must be our rock - our anchor.  Where the court inserts itself, we drift further away from the very words that have made America great.

UPDATED: Bruce McQuain has more at HOTAIR
http://hotair.com/archives/2011/02/23/obamacare-ruling-more-commerce-clause-idiocy/trackback/

UPDATED:  Citizen's United v FEC is not a case of judicial activism, in case you weren't sure.  Political spending is an aspect to political speech, and free speech rights naturally include political speech.  Overturning precedent when precedent is so clearly incorrect returns the law to that which the constitution intended.  For those who disagree, I would ask for a discussion into the court-protected free speech rights of flag-burning and pornography be included in that discussion.