Larry Solum has updated his Legal Theory Lexicon entry for “Strict Construction & Judicial Activism” —
This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that (arguably) are unimportant (or even meaningless), strict construction and judicial activism.
I excerpted with praise his original entry back in May 2007, and I gladly do so again now:
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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 an 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.
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.
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Care to guess how John McCain, in rather large font, describes his judicial “philosophy”? Hint: Professor Soulm would not approve. Neither would I.
As for Obama, I can’t find anything about judicial appointments on his campaign website (mainly because it has no search function –shame on them for that). So I have to default to these September 2005 remarks rationalizing his obviously partisan vote against John Roberts’ confirmation:
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
This is, of course, utter nonsense. It is the sort of worthless blather that could only come from Candidate Obama and never from Professor Obama. And he of all people damn well knows it.
The Constitution is always — always — “directly on point.” Legal process alone can always — always — “lead you to a rule of decision.” If you’ll let it.
There always either is or is not an enumerated power granted (or denied) to Congress or the president, that fact is itself “directly on point.” The presumption of liberty embodied not only by the Bill of Rights (including the Ninth and Tenth) and by the Fourteenth Amendment is always “directly on point.”
The only thing that can ever fail to be “directly on point” is the broken moral compasses of our politicians.
