So I’ve been away for a while, and there’s lot to talk about.
One piece of big news is that Rand Paul has said he’s all for judicial activism. And he came very close to embracing the consistently libertarian or “presumption of liberty” agenda of the fine constitutional scholar Randy Barnett. The one exception: Rand is still less than clear on the case for Roe v. Wade, seeing that it should have been understood as involving a clash of rights. That might be because it’s still the case that no pro-Roe person could get the Republican nomination. But we’ll take Rand on his word that he’s ambivalent on that one landmark example of judicial activism.
The real news is that the academic libertarian movement trumpeting judicial activism for its ability, as Paul put it, “to mete out justice” has moved from the world of law professors and such to mainstream political discourse. Maybe the prelude to Paul’s move was George Will’s. What’s most telling is the emergence of activism as a virtue of the Court. The more the Court does, the better.
In my opinion, Justice Kennedy is pretty much the one and only reason that this is the moment of hope for promiscuous judicial activism. He is the only justice, after all, that both would have declared Obamacare unconstitutional and was for declaring the Defense of Marriage Act unconstitutional. The libertarians, such as Barnett, pretty much agree with him and no other member of the current Court. The four Democratic appointees are weak on property rights, the four Republicans are weak on personal (or what used to be called privacy) rights. The uncanny influence of Kennedy comes from his standing between the two factions, not because his singular mode of constitutional reasoning commands widespread respect. This privileged moment for whole-hog libertarian activism can’t last, and it’s naïve to confuse it with some kind of national trend that’s likely to endure. But there’s no denying that many libertarians have fallen for Justice Kennedy’s alleged insight that it’s the Court that defines what liberty is for each generation of progressively more liberated Americans.
The obvious objection to judicial activism is that it’s undemocratic. Now a libertarian would say that’s the point. Every day government by whatever means necessary protects or enlarges the domain of liberty from “majority faction” is a good one.
But, from another view: Our Framers regarded the people as the primary guardians of their rights, and the various constitutional means of protecting the people from their momentary inclinations and the tyrannical impulses of the ambitious are merely auxiliary precautions.
If that’s the case, then the people are corrupted in a way that’s inevitably corrosive of liberty when they come to rely on the judiciary (or, for that matter, bureaucrats and such) to protect their rights, to protect them from themselves. It was and is, for example, corrupting for Republicans and such to believe that the Court should or could protect them from Obamacare, just as it’s corrupting for the religiously observant to believe that the Court will protect their religious liberty from executives and bureaucrats, not to mention from courts. The same even goes for those who think that “abortion rights” are secure if public opinion remains hostile or even ambivalent toward them.
And during the celebration of the birthday of MLK, we remember that his “direct action” was not aimed primarily at the courts but to turn around “white moderate” citizens who shamefully preferred order to justice. Its fruits – as we can see in the movies – were pieces of legislation: the Civil Rights Act of 1964 and the Voting Rights Act of 1965, legislation pushed through Congress as as soon as public opinion would allow it by (as we don’t see in the movies) President LBJ. Admittedly, Brown is an example of admirable and indispensable judicial activism; yet even its greatness is only as a decision and not as an opinion. But even on race, where activism on behalf of treating people as citizens and individuals, as not as members of races, is clearly rooted in the text of the Constitution (and so not activism in the pernicious sense at all), the Court’s record is very mixed.
Finally, if the people aren’t taught to resist judicial activism or to be distrustful of the judicial pretension to be the final word on the Constitution’s meaning, they will, as Lincoln said, come to cease to be their own masters.