Three Terms to Understand: Judicial Activism, Judicial Restraint, and Judicial Passivism

In a thoughtful law review article, Ed Whelan defines three terms that describe the proper understanding of judicial review and applying the Constitution:

[T]he term judicial activism best captures succinctly the wrongful judicial invasion of the realm of representative government. The core of judicial activism, as I use the term, consists  of  the  wrongful  overriding  by  judges  of  democratic enactments, typically through the invention of new constitutional rights…. I emphasize that judicial activism is just one category of judicial error. I use the term “judicial passivism” to identify another category of error: a court’s wrongful failure to enforce constitutional rights  and  limits  on  governmental  power.  Judicial restraint is the sound mean between the two extremes of judicial activism and judicial passivism.  Judicial restraint  means that judges do not wrongly decline to apply democratic enactments. At the same time, it is entirely consistent with judicial restraint, and it is part of the judicial duty, for judges to deem unconstitutional those statutes that do clearly conflict with the Constitution.

So, in other words, when exercising judicial review, courts should enforce only those limits on democratically-enacted laws that actually are written into the Constitution. Limits that are written into the Constitution should be enforced; however, neither should courts judicially amend the Constitution by inventing new constitutional law to wrongfully override democratically-enacted laws and regulations. Or, as I like to say when channeling Justice Scalia, the Constitution says what it says, and it doesn't say what it doesn't say.

What do you think about Whelan's concept of legitimate judicial review?