Originalism, Moral Skepticism, a the Ubiquity of the Normative

Frank Cross crossf at mail.utexas.edu
Mon Sep 4 10:26:52 PDT 2006

Sean,these arguments are based on a contested a priori definition of 
activism.  You may choose to define activism as "going out of bounds" but 
that's not necessary nor does it seem logical.  One might as well define 
activism as changing the status quo, regardless of whether in or out of 
bounds.  You want to confound activism with the "judicial will" and I am 
saying that they should be considered two different things.  There is some 
value in differentiating judges who strike laws as an exercise of willful 
judging and those who don't strike laws as an exercise of willful judging.

At 12:11 PM 9/4/2006, Sean Wilson wrote:
>If the constitution says "protect speech," and a judge fails to do so, how 
>is it that his or her passivity is not an excess of the judicial will 
>equal to when he or she strikes down, say, a punitive damage award? In 
>each case it is the desire of the judge to construct winners and losers 
>that seems to prevail. The term activism, therefore, cannot mean how often 
>you strike. It must have something to do with epistemology: how often you 
>REACH. Whether judges reach more than others is an interesting question. 
>One could indeed adopt a view that says reaching is bad (thought it would 
>be contested). But one could never adopt the view that striking is bad, 
>unless one was saying that too much striking is evidence of reaching. 
>Activism only makes sense if it refers to the propensity of the judge to 
>go "out of bounds." Not calling a "strike" when the pitch is in the strike 
>zone is every bit a threat to the institution of umpiring as calling 
>strikes when the pitches are high.
>Frank Cross <crossf at mail.utexas.edu> wrote:
>Well, people erroneously assume activism is bad.  It is fair to say that 
>striking down laws is activist.  Doing so may be constitutionally 
>appropriate, even required, but it is still activist.  Doing nothing is 
>not activist.  We need to differentiate between activism and passivism, 
>and only then can we try to differentiate between appropriate and 
>inappropriate activism
>Dr. Sean Wilson, Esq.
>Penn State University
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Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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