The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover by Timothy Sandefur

Author:Timothy Sandefur [Sandefur, Timothy]
Language: eng
Format: epub
Tags: book, ebook
ISBN: 9781939709035
Publisher: Cato Institute
Published: 2014-01-06T14:00:00+00:00

5. Judicial “Activism” and Judicial Abdication

If the left and right agree on nothing else, they share a conviction that judges—particularly unelected federal judges—frequently exceed the scope of their office and impose their own political views from the bench, an evil called “judicial activism.” Condemnation of “activist courts” has become a regular feature of presidential elections, and the press has been swamped with books about supposedly extremist judges—with such foreboding titles as Men in Black: How the Supreme Court Is Destroying America, by Mark Levin; Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, by Cass Sunstein; Coercing Virtue: The Worldwide Rule of Judges, by Robert Bork; and The Rehnquist Court: Judicial Activism on the Right, by Herman Schwartz. But for all their anxious language, few such books seriously address the role of the judiciary in our constitutional system or ask whether activism is really as dangerous as political leaders claim.

Among the crowd, three figures stand out: liberal Supreme Court Justice Stephen Breyer has authored two books about courts and democracy; conservative judge Robert Bork also wrote at length on the subject, focusing on what he saw as the threat “judicial activism” poses to the moral stability of society; and University of Pennsylvania law professor Kermit Roosevelt, author of the 2006 book, The Myth of Judicial Activism, stands in the center, as a specimen of the mainstream of legal scholars today. For all their differences, these three together demonstrate that the controversy over judicial activism is really a debate over the relationship between liberty and democracy in the American Constitution.

The authors of our fundamental law meant for it to protect individual liberty—the right to act freely without interference by, or violence against, others. But Breyer, Bork, and Roosevelt see the Constitution as concerned primarily with fostering democracy and enabling the majority to create its preferred society through legislation. In their eyes, even cherished individual rights are worthy of protection not for the individual’s sake, but only because they aid the majority in making decisions and implementing its will. This again gets the constitutional priorities backward. Focusing on democracy instead of liberty as the basic constitutional value not only reflects a surprising naïveté about how legislatures actually operate, but it takes for granted the wolfish perspective that lawmakers or the majority of voters have the right to “do as they please with other men, and the product of other men’s labor.”1

The Constitutional Role of the Judiciary

Before discussing “judicial activism,” we must first understand the role that judicial review plays in the American Constitution, since it is impossible to know whether “activism” is an abuse without first knowing what judges ought to do.

Judicial review existed long before 1803, when Chief Justice John Marshall wrote the famous opinion in Marbury v. Madison.2 Alexander Hamilton had explained the idea more than 15 years earlier in The Federalist.3 The Constitution, he wrote, embodies the genuine will of the people, whereas a statute only embodies the will of a particular legislative majority at a particular time.

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