October 12, 2005
Overturning laws is not judicial activism
Oft-heard on the right is the idea that we want justices who won’t “legislate from the bench”. This is an expression of the fact that we do not think the proper role of the court is one to set policy. The proper role of the court is to interpret laws made by our elected legislators, and determine whether they are valid according to the constitution. However, the Left assumes that if our Supreme Court is overturning laws, they are legislating from the bench. It is built from an incorrect view the conservatives believe that the court should leave most issues up to the legislature. This is incorrect. Most conservatives believe that if an act is constitutional, its administration should be left to the legislature. If it is unconstitutional, it should be struck down by the court.
This charge was leveled by Matt Yglesias at Charles Krauthammer most recently:
But Miers distinguishes herself from zero percent of the conservative judges I’m familiar with in this regard. There’s probably some conservative judge, somewhere, who I’m not familiar with who actually adheres to the right’s pseudo-principle that courts ought not usurp the power of elected officials, but it certainly isn’t standard operating procedure. As has been widely noted, the Rehnquist Court has been one of the most aggressive in history at striking down this law or that. So while this is a decent objection to Miers, it’s an objection that applies equally well to everyone.
Yglesias is attacking a strawman. The position of strict constructionists is not that the Supreme Court should defer almost all matters to the legislature. It is that the Supreme Court is legitimately a check on the legislature, and not a legislative body of its own.
In a system of checks and balances, the Supreme Court is not designed to balance the legislature, it is designed as a check on their power. Likewise, it is also a check on the power of the executive branch. The balance of that check is the Senate’s role in voting up or down who is able to sit on the Court. The President’s balance is his nominating power to the Supreme Court, and the Senate is a check on the president’s nominating power. The legislature is tasked with making laws, and the president has a limited check on that power politically with his veto, and the Supreme Court has an ultimate check on that power as arbiter of the Constitution. And the people and legislature have the ultimate check on the Supreme Court through the constitutional amendment process.
The proper role of the Supreme Court is to strike down laws made by the legislature that exceed the federal government’s Constitutional powers. The problem is that both parties want justices who are judicial activists, for their own side. Democrats want big-government justices, who will grant the federal government unlimited power, because the Constitution will not allow them to enact all their pet programs otherwise. President Bush wants religious justices who will overturn Roe v. Wade and uphold things like school prayer, etc. It is the few, not the many, who want the Supreme Court to be a dispassionate arbiter of Constitutionality. It is the few, not the many, who want the Supreme Court to uphold the Constitution regardless of the results that come down. If you want different results, amend the Constitution.
The reason that we, as libertarians, don’t want justices to “legislate from the bench” is that there is no sufficient check on their power. Congressmen and Senators are elected regularly, and the President is term-limited. If the Supreme Court becomes a legislative power, it may become the most powerful legislative body in existence, because neither the executive or legislative branch can contravene their decisions. We want a Supreme Court to be purely a check on the power of the legislative and executive branch, not a balance.
Striking down unconstitutional laws is not “legislating from the bench” or “usurping the power of the legislature”. Even striking down incorrect precedent is not “legislating from the bench”. If we allow the Left to continue this debate unopposed, it will weaken our entire foundation for argument. The next time you hear someone claiming that overturning laws is “judicial activism”, respond early and quickly, because losing this argument now will cripple us in the future.
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I agree with you here, and this is one of the areas I most strongly disagree with the typical “left” folks (of which yes I am very much one). If we want a real privacy law or right, we should legislate it, not battle with a court to continue interpreting it out of thin air. If we want abortion rights, we should legislate them clearly. If we want gay marriage rights, we should legislate them clearly. If that legislation would be unconstitutional, we should amend the Constitution. Any other position either asks the court to make law, or treat the law as some other thing that is open for wide interpretation, and begs for trouble down the line.
It is the same phenomenon that leads (in my mind) to the greatest criticisms of Bush’s presidency. The liberals were all fine and dandy with massive, centralised power as long as they wielded it. They pushed more than anything for stronger and more powerful and unchecked central government…
…only to turn over the keys to all their toys to George W. At which time they predictably decried centralised power, and seem to preach the principles of confederalism or at least federalism — while of course at the same time attempting to squirrel their way back into the bully pulpit.
It is the call for limited federal power, the believe that the social and religious freedoms of the many outweigh the restrictive wishes of the few, that push us “down” on the Political Compass. Unfortunately, calling ourselves “downers” seems even worse than the “leftist” label, and certainly less historically interesting. And of course, the word liberal has been usurped by the American left for far too long for the word to have any honest meaning in debate.
I myself have no real label to call home. The “Libertarian Party” is certainly not for me, as I have not relinquished the notion that the economic needs of the many, however detestible they might be to some, outweigh the economic freedoms of the few; the Republicans are fascists, and the Democrats are fascists of only a mildly different flavor — “now with 10% less fascism!” Both of the “major parties” have been and are ruining this country, with an arms race of centralisation of power and arm-wrestling to see who gets to wield it. And as you point out, who gets to appoint their judicial activists to which courts — “Our activists are good, yours are bad!”
As a final aside which is vastly off-topic here, back to my stance on economic freedom vs. economic need. I hold that there is a vastly reduced utility in having freedom of religion or speech, if you are too hungry to excercise it. What that has to do with courts and judges…
Well, the good thing about the US is no one is hungry. The “poor” in Louisiana being lifted off roofs could hardly fit in those baskets they were so fat.
Anyway, the best test for some little bit of intillectual honesty is to simply ask someone to identify, in their opinion, (1) a horrible public policy that they must admit is constitutional, and (2) a great public policy in their mind that they must admit is unconstitutional. When they can do that — they are on the right tract.
An example for me? (1) minimum wage; (2) using mandatory 9/11 type compensation for mass tort cases like asbestos, silica and pharmacutical litigation (the 9/11 system was not mandatory b/c it didn’t allow for a jury trial - but since it created strict liability most people opted into it — it could be a good system if it weren’t for that pesky consitutional right to a jury trial).
1) The income tax.
2) Judicial Review
Well duh! The income tax.
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