Over at Positive Liberty, Tim Sandefur has a good piece on “judicial activism” that takes on the claim that Jones’ decision was an example of same. As Tim – who also blogs with the Panda’s Thumb – notes:
With this in mind, check out this post at Southern Appeal, which accuses Judge Jones of activism in the Kitzmiller decision. “Judge Jones does not understand who is suppose to [sic] be an activist in our constitutional system,” writes Verity. “A School Board is suppose to [sic] ‘act’ and make policy and curriculum decisions. And if those decisions are ill-informed, then, as happened here, the School Board will be voted out of office and the decision reversed by a future Board. A federal judge is not suppose to [sic] decide what science is, or is not, and then ‘act’ to overrule the School Board’s decision” But, again, if this were how the system were supposed to work, then we would need no Constitution at all. We could simply trust that if bureaucrats went crazy, and started stealing things and searching without warrants and silencing political opponents (imagine!)–that we could just vote them out of office, right? But of course, the Constitution exists to protect us from majorities, not to empower them. Yes, obviously a school board is supposed to make curriculum decisions; but it is supposed to do so within the boundaries of the First Amendment. And of course the role of the court is to protect us from a board that goes beyond the Constitution. What else is the judiciary for? You see here how Verity’s argument is, in fact, an argument against judicial review itself, and in favor of the unlimited, unrestrained, power of the legislature to do with us and our rights whatever it pleases.