The blogs interested in legal issues seem to be once again debating an issue, this time "judicial activism". As I mentioned in a post yesterday, the Boston Globe had a Sunday article on it quoting one blogger, Randy Barnett, and it seems to be spreading throughout the blogosphere. Barnett, of Boston University, has posted a brief tidbit on the article here.
Jack Balkin of Yale Law School has been taking on Jonah Goldberg and Stuart Buck on the issue.
Charles Petit, an intellectual property attorney, has one here.
And, as usual, Larry Solum of UCSD has come through with a terrific summation of the arguments that cuts through the political doubletalk.
The one thing that everyone seems to agree on is the essential truth of the argument I've been making on this blog for weeks now - that when politicians claim "judicial activism", they are saying nothing meaningful at all. All they are really saying is "we disagree with the decision". The bottom line, I think, is what Balkin said in his response to Buck:
The truth of the matter is, whether people like it our not, we have a two track system for changing constitutional meanings. Article V amendments, and Article III interpretations. Liberal judges and conservative judges alike engage in constitutional change through judicial interpretation. Although some judges say they are only following precedent or only following original understanding, that's just simply not true. They are using the modalities of precedent or history or text or structure in order to argue for their preferred vision of constitutional norms. (See my previous post on Scalia's jurisprudence for my discussion of how he selectively invokes original meaning and precedent to get where he wants to go).The fact is, we are all living constitutionalists now; but only some of us are honest about it.
Which means that when someone declares "judicial activism", 9 times out of 10 they're just being disingenuous.
"...when someone declares "judicial activism", 9 times out of 10 they're just being disingenuous."
Maybe you're right and maybe you're wrong, but it remains that the judicial branch has interloped into the peoples rights to govern themselves.
Judges have been instituting law rather than interpreting in such a way that it has proven difficult to remedy.
I am thinking of the judicial decision, which had other tests to use, that resulted in the abridgement of the right to religion. The Religious Freedom Restoration Act was not able to reconstruct that.
http://www.religioustolerance.org/rfra.htm
Judicial Activism is a problem. maybe not in all the instances it is cited, but one that ought to be looked at a bit more carefully than you are doing here.
Sorry, but the decisions that led to the RFRA were not even close to being examples of judicial activism. They were all matters of interpreting the law, not instituting it. They may not have been interpreted correctly (and I specifically disagreed with a couple of them), but it's still not "making" law, it's interpreting the broad requirements of the first amendment in specific situations not mentioned.
In almost every instance where the courts have "interloped on the people's right to govern themselves" (which really means prevented the majority from imposing their will on the minority, which is what the courts exist to do), they've been correct to do so.