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Judicial Activism

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George Will today muddies the linguistic waters by using the term "judicial activism" to mean something entirely different from what that term has been understood to mean for many years. "Judicial activism" is the practice of substituting the judge's personal opinions for what a provision of the Constitution was understood to mean at the time it was adopted. Will's column has to do with whether a federal mandate on health insurance is constitutional (a controversy CJLF takes no position on, BTW).

More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual -- basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.

That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution's text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.


That sounds like Humpty Dumpty in Lewis Carroll's Through the Looking Glass. Limitation of federal authority to the enumerated powers was universally understood at the time the Constitution was adopted, and just to eliminate any doubt, the Tenth Amendment was adopted to state it explicitly. "Unflinching performance" of the court's proper role of enforcing the Constitution as originally understood, even when it is contrary to a later statute, is not judicial activism. Matthew Franck has more on this at Bench Memos.

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