A Stitch in Haste

Regular readers know that I have near limitless contempt for the gobbledygook terms “judicial activism” (a/k/a “activist judges”) and “strict constructionism.”

Fortunately, Professor Larry Solum has a new entry” in his Legal Theory Lexicon (which I have cited favorably in the past) explaining, in more polite yet no less damning analysis, precisely why those terms are indeed pure blather:

[A]lmost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the “unenumerated rights” jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment.
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[Some] provisions of the Constitution don’t seem to have any determinate literal meaning — the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.
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It simply isn’t clear what “strict construction” means.

Isn’t clear, that is, to people who actually “do” constitutional analysis. The only unambiguous meaning of “strict constructionist” is the political meaning: someone who would seek to overturn decisions social conservatives don’t like. (Or, worse, Rudy Giuliani’s embarrassing oxymoronic hypothetical: a “strict constructionist who respects precedent.”)

On “judicial activism” —

Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term “judicial activism” is that it translates best as “judicial decision making with which I disagree.”
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One can define judicial activism in a way that doesn’t boil down to “wrong,” but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, “judicial activism” is not a useful term for constitutional theorists.

Of course, given that judges can only hear cases that end up before them (i.e., challenges to laws that have been enacted), one can — and should — turn the “activist” lens back on itself. You cannot have “activist judges” unless there are “activist legislators” forever passing new laws, that in turn forever generate new litigation. A judge can’t make up a new case simply because she’s bored. Yet that is, by contrast, the raison d’être of politicians — to legislate for the sake of legislating. Stated differently, the best way for politicians not to see their laws struck down would be by not passing those laws in the first place.

The Legal Theory Lexicon is written precisely for incoming first-year law school students and is suitable for laypersons. Do read the whole entry.

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By sheer coincidence of timing, Professor Jack Balkin applies this very analysis to Justice Thomas:

Precedent should implement constitutional text and principle rather that displacing them. Precedents that are not reasonable implementations of the original meaning of the constitutional text and its underlying principles deserve no special respect and should be discarded.
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[The] assumption that originalism — including original meaning originalism of Thomas’s variety — requires fidelity to understandings and practices at the time of the adoption of the constitutional text … leads to endless conflicts between precedent and originalism.

Again, to Rudy Giuliani, these “endless conflicts” are — his word — “okay,” and will continue to be “okay” when considers which “strict constructionists” (judicial or political connotation?) he will appoint as judges and Justices.

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UPDATE: See also E.J. Dionne –

Giuliani would take any position as long as he could paste the stale and meaningless phrase “strict constructionist” over it — and shuck off responsibility to a judge.

Some people just get it.

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• How to Read the Constitution
• Dershowitz: Rehnquist a “Republican Thug”
• Is “Freezergate” a Constitutional Crisis?

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