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Tuesday, April 12, 2005Judicial ActivismInstapundit is writing today about judicial activism and the possibility that Sen. Maj. Leader Frist is hanging out with a nutcase. It's true that judicial activism is a problem. Activist judges spend too much time discovering things in the Constitution that even if there should enter explicitly into our law not by judicial fiat but by legislation. And given the number of statutes our elected officials have managed to get on the books (and the number of bureaucratically fashioned regulations emanating therefrom), it doesn't seem likely that we've got a big shortage of law. If the legislative and executive haven't gotten around to writing a law about something, it's just possible that the courts should defer to the other two branches in their concurrence that it's not time to make a law about it after all. Here's the problem: Are conservatives aiming to end judicial activism? Or to channel it in a different direction? I've read the Constitution a few times and don't remember a single word about abortion. Either for or against. As for the equal protection clause giving rise to privacy rights... I don't get it. I'm not a legal scholar, but looking at the ninth and tenth amendments - - it seems to me that this is a matter for the states unless it involves a right not mentioned but whose existence is apparent within the intellectual framework of our society and government. Privacy-shmivacy. The question is whether abortion is any of the government's business at any level. If there's a compelling state interest - i.e. the republic would be threatened by the practice's existence or unregulated existence, the feds can step in. Ditto at the state level. Unless reproductive freedom is of such high order that any problems posed by it paled in comparison to the damage done to the spirit of our enterprise if it were restricted. Glad to say, I don't actually have to solve this one. But my guidance would be as follows: If someone declares himself opposed to judicial activism and then suggests that the states should draft their own laws, he might be worth talking to. But if he instead invokes the sanctity of life and suggests that the Supreme Court ought protect all human life by ending abortion, don't bother with him. He's just another species of judicial activist. By the way, why don't the ninth and tenth amendments get more attention? Easy. They're a bit open-ended and threaten the single biggest conspiracy in Washington. For all the battling between the courts, the executive and the legislative, there's one point they pretty much agree on: Washington should run the show. A healthy consideration for these two amendments might lead reasonable people to suspect that at least half of what the courts have done and three quarters of what the other two branches have done since the 1930s should be junked. Maybe even before. If Judicial Review has turned into an excuse for the courts to invade any area of life they damn well please, the Commerce Clause has likewise been turned into a blank check for federal intervention by the legislature anywhere they can get the president to agree. And in the meantime, the two sides have also tacitly agreed (for the most part) to respect each other's nonsense while the areas of life for which smaller governments and private individuals have responsibility and power continue to erode. Our best outcome for the judicial activism gaming - though it will never happen - is for both sides to get ornery enough with each other to start invoking their perorogatives vis-à-vis each other instead of against us. One thing the Schiavo case reminds us is that the Congress can make the courts look. They can impose other restrictions too, including refusing to pay the courts' electric bills. In retaliation, the courts could start looking at the Commerce Clause as what it is: a tool for making it possible for people to do business in multiple states without needing an army of lawyers, not a justification for the feds to run everything. If Judicial Review started throwing out programs that gave the feds excessive authority while the Congress started moving actively to curtail the courts, we could get the government trimmed back to only being, oh, three or four times as large as it should be. Not to worry. It'll never happen because neither side wants to raise the stakes that high. So get out your popcorn and enjoy the show. Watch the courts protest that they're saving you from the fascists while the Congress boasts it's going to protect you from judicial activists. But just remember, they're not really pushing to make you freer, just to decide who gets to rule. 
posted by gbarto at 10:20 AM |
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