What Is Judicial Activism?

As we study the concept of judicial review and the great power the Supreme Court of the United States has decreed for itself, the question of "judicial activism" arises. What is judicial activism? Is it nothing more than a label used by legal commentators to describe decisions they disagree with? Or is it a real threat to democratic self-government and the rule of law? Consider the following dialogue by Roger Clegg on this issue. What are your thoughts?

Link Here is a major excerpt:

Roger Clegg: A Brief Dialogue on Judicial Activism

Central to the judicial nominations debate is the question of judicial activism. Through a series of questions and answers written for the Committee for Justice, Roger Clegg explains what types of decisions constitute judicial activism and why Americans from across the political spectrum should oppose it. Clegg is president of the Center for Equal Opportunity, a former high-ranking Justice Department official, and one of the nation's leading experts on civil rights law.

A BRIEF DIALOGUE ON JUDICIAL ACTIVISM
By Roger Clegg

Q. What is judicial activism?

A. Judicial activism is when a judge ignores what the text of the Constitution or some other law says and substitutes instead his own preference for what it ought to say. It can involve putting something into the text that isn't there, or taking out something that is there.

Q. Is it activism whenever a court strikes down a statute as unconstitutional?

A. Of course not. If a statute violates the Constitution, it would be judicial activism not to strike it down. Striking down a statute is judicial activism only if the statute really isn't inconsistent with the Constitution.

Q. Is it activism whenever a court overrules one of its own precedents?

A. Again, of course not. The principle of stare decisis - Latin for "Let the decision stand" - is a venerable one, and there are good reasons for courts not lightly to ignore their past rulings. But from time to time they do so, and it really doesn't make sense to call it judicial activism when they do. After all, how can overruling a decision that was itself activist be properly labeled activist?

Q. But don't liberals complain that the current Supreme Court is activist because it has struck down some federal statutes, and mightn't they complain that overruling a decision like Roe v. Wade is activist?

A. They have and they might, but in their heart they know this is a bogus claim.

Q. Okay, so judicial activism is just a court ignoring the text of a law and substituting its own policy preferences. But why is this a left-versus-right argument?

A. It shouldn't be. And, indeed, sometimes judicial activism has led to results that liberals would presumably dislike. Exhibit A is, of course, the infamous Dred Scott decision, where Chief Justice Taney made up a constitutional prohibition against Congress limiting the spread of slavery. At the present time, judicial activism is being used by the left in the culture wars, but it has not always been so, nor will it always be so.

Q. So, probably there are instances where conservatives would like for judges to bend the Constitution's text one way, and liberals would like to bend the text the other way. But why shouldn't this be part of what judges do? Put bluntly: What's wrong with judicial activism?

A. What you're asking is, "What's wrong with judges ignoring the Constitution?" and the answer is the same as the answer to "What's wrong with the President (or Congress) ignoring the Constitution?" Sure, in the short term the Constitution may thwart policies or outcomes that this group or that group might prefer. But in the long run the Constitution protects us all, and it is perilous to urge any of the three branches of government to ignore it.

Proposed Federalism Amendment

Randy Barnett, a prominent libertarian constitutional scholar, has written an essay proposing a fascinating constitutional amendment. Here is Barnett's proposal:

The Case for a Federalism Amendment

How the Tea Partiers can make Washington pay attention.

By RANDY E. BARNETT

In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.
What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?
One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax. There is precedent for repealing an amendment. In 1933, the 21st Amendment repealed the 18th Amendment that had empowered Congress to prohibit the sale of alcohol.
Alternatively, to restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment" like this:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.
Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.
Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.
Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.
Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.
Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.
Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.
Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.
Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.
Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.
Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.
Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).

Here is a response to Barnett's proposal.
What are your thoughts?