Barnett takes on Bork and Bainbridge

Randy Barnett has a post on the Volokh Conspiracy that is quite interesting, concerning criticism leveled at him by Stephen Bainbridge and a letter to the editor from Robert Bork in the Wall Street Journal. Professor Barnett, as usual, makes the point about judicial activism that I've been making repeatedly on my blog:

Both posts beg 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?

And he concludes with the same conclusion I've come to:

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...

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 I. 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.

Quite right, Mr. Barnett.