Originalism, Moral Skepticism, a the Ubiquity of the Normative

[Frank Cross]

It's just definitional.  But it seems obvious to me that inaction is not 
activism, just from the ordinary meaning of the words.  Inaction may be 
legally inappropriate, an abdication of responsibility but it is not 
activism.  The problem is arising, I think, from the unfortunate conflation 
of "activism" with "bad decisionmaking" when there is no reason for that


At 12:59 PM 9/4/2006, RJLipkin at aol.com wrote:
>         It's unclear to me why upholding a law would be regard 
> necessarily as non-activist.  If the law is clearly unconstitutional, as 
> the law in Plessy, say,--then upholding it is activist. Again judicial 
> activism" has two senses: (1) descriptive and (2) normative.  Unless one 
> says that "activism" refers only to striking down laws.  But one needs an 
> argument for that. In my view, it is not at all "passivist" to uphold a 
> law that is unconstitutional because restraint in the licensing 
> unconstitutional laws is no virtue and activism in striking down 
> constitutional laws is no vice.  "Passivism" typically means denying to 
> hear the case for whatever reasons found in the justiciability doctrine 
> or in other jurisdictional doctrines. In that context maybe "activism" 
> means hearing cases that should not be heard on justiciability 
> grounds.  The distinction between "activism" and "passivism," in my view, 
> is an entirely different issue, which we need not explicate in order to 
> discuss activism and restraint in upholding or striking down laws.
>
>Bobby
>
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
>Delaware

**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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