Originalism, Moral Skepticism, a the Ubiquity of the Normative

[J. Noble]

At 2:39 PM -0400 9/4/06, RJLipkin at aol.com wrote:
>           Our linguistic intuitions differ.  When a justice upholds 
>a law that is clearly unconstitutional, he or she is deciding 
>erroneously. Right?  But is he or she is doing more than that? My 
>answer is yes. In upholding an unconstitutional law--or a law that 
>the judge erroneously thinks is constitutional--a justice must 
>recognize that his or her decision licenses Congress or the states 
>to pass such laws.  Permitting or licensing conduct is action just 
>the same. It seems clear, at least to me, that striking down or 
>upholding laws are both judicial decisions that count as action. 
>And when such action--not "inaction" but action--occurs the Court is 
>deciding yes.  When it strikes down a law it is saying no. If saying 
>yes is an action and a judge does so inaccurately, I think, it 
>appropriate to call it "activist." I think this is more than a 
>semantic quibble. Wrongly licensing conduct is a decision just as 
>prohibiting conduct is.   Indeed, we would not call a judge an 
>"activist judge" if he or she always got the constitutional decision 
>right.  If that's so, it's difficult to understand why deciding to 
>uphold a law cannot qualify as activism.

This conception of judicial activism deprives it of whatever analytic 
usefulness it might have. (Perhaps that's your point.) Judges take 
judicial "action" when they rule on a motion for leave to amend a 
complaint -- whether by grant or denial. Inaction is not an option. 
So too on a complaint for declaratory judgment that a law is 
unconstitutional. There's no such thing as judicial inaction. The 
divide is not between action and inaction, but between activism and 
restraint.

Activism and restraint are tested at the boundaries of judicial 
authority and competence. The grant or denial of a motion for leave 
to amend, or the issuance or denial of a warrant upon finding or 
failing to find probable cause, whether the decision is right or 
wrong, clean or corrupt, logical or inane, is not judicial activism 
because it is plainly within the bounds of judicial authority.

Judicial activism usefully refers to judicial acts that strain the 
bounds of judicial authority. The obvious example is the discovery of 
substantive due process rights. Another example is the invocation of 
the dormant commerce clause to strike down a state law upon a 
"finding" of "substantial effects."

Striking down a law as a violation of the First Amendment isn't 
activism insofar as the decision is premised on the constitutional 
injunction -- "Congress shall make no law...." But you can see 
judicial activism in the decision that creates an exception that 
allows courts to /uphold/ such a law if it is "narrowly tailored" to 
a "compelling government interest." And then you can find still more 
obvious judicial activism in decisions that turn on a ruling that the 
government's interest is not compelling, or that the regulation is 
not narrowly tailored. Activism begets activism until, as Frank 
points out, slinging the charge amounts to "little more than 
ideological protestations" -- in your words, "a pejorative."

If you conceive of judicial activism such that it's opposite is 
restraint, rather than inaction, then a decision which upholds an 
unconstitutional law is neither judicial activism nor judicial 
restraint -- it's just judicial error, e.g. Korematsu, which might be 
characterized as misguided, mischievous, oblivious, or gutless, but 
is not a fair example of either judicial activism or judicial 
restraint. In this conception, you can characterize Lopez along with 
Lawrence as examples of judicial activism, even if you think one is 
correctly decided and the other misguided. At the same time, Raich 
and Kelo are both examples of judicial restraint, even if you believe 
that the Court failed its duty by licensing unconstitutional 
regulation.

John Noble


>
>Bobby
>
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
>Delaware
>
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