Justice Stephen Breyer, a stalwart of the liberal bloc on the U.S. Supreme Court, has written a new book, “Making our Democracy Work.” Ironically, if our constitutional republic were in fact a pure democracy, which it isn’t, Breyer wouldn’t have been appointed to the court for life, but rather elected by a majority of the voters. But that’s another subject.
At a recent public appearance in Arkansas, Breyer cited his book while making the case for judicial activism. As The Associated Press described it, Breyer proclaimed that “the court should apply the Constitution’s values with a pragmatic view toward present circumstances, rather than focusing only on the document’s historical meaning.”
Regarding historical meaning and intent as hindrances, judicial activists, like Breyer, have converted our foundational document into what they call a “living constitution.”
This is hardly a new idea. Conservative critic Thomas Sowell reminds us that this was a recurring theme a century ago among progressives like Harvard Law School Dean Ezra Pound, who touted the notion of a “living constitution” to put the law “in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.” That sentiment was shared by Justice Louis Brandeis, who called for a shift “from legal justice to social justice.”
The competing school of judicial philosophy, still embraced by today’s conservative bloc on the Supreme Court, has historically been known as “originalism,” holding that the Constitution should be interpreted according to its actual words and intent, not according to the personal beliefs of unelected philosopher-kings in black robes who have a different idea of how it ought to read.
Earlier this year, Federal District Court Judge Roger Vinson ruled Obamacare unconstitutional. He reasoned that mandating individuals to acquire private health insurance is an abuse of the commerce clause, which was never intended or applied to force people to buy something. When the Supreme Court has the last word on this matter, it has the potential to be a landmark case, reaching well beyond the issue of health care and addressing decades of congressional overreach, exploiting the commerce clause to justify all kinds of legislative mischief.
On the heels of Vinson’s ruling, a New York Times editorial branded it “a breathtaking example of judicial activism” (italics mine). Whoa! Now, The Times is free to disagree with Vinson, but describing his ruling as “judicial activism,” is both galling and laughable. That’s exactly the opposite of what it was.
Judicial activism is what imperious liberal judges do when they refuse to be constrained by the Constitution or the law. It’s what Breyer, Pound and Brandeis advocated, above. It’s judicial fiat, with judges usurping the role of legislators, conveniently and arbitrarily rewriting the Constitution to achieve their desired social or political ends. Vinson’s ruling was a crowning example of judicial restraint. He didn’t rewrite the Constitution; he protected the original intent of the commerce clause as understood by James Madison and other founders.
Justice Oliver Wendell Holmes Jr. concisely exposed judicial activism for what is when he explained to an idealistic young lawyer in his courtroom, “This is a court of law, young man, not a court of justice.” If you think a law is unjust, appeal to your legislators, not your judges. If you think the Constitution is unjust or out of date, then work to amend it in the prescribed manner.
Liberal proponents of judicial activism are defensive about that label, so they play a clever little word game. Like the New York Times editorial, they misapply the term in order to neutralize it. They’ll call it judicial activism when an originalist judge overturns an unconstitutional law or overrules an activist judge in a lower court. That’s like equating a cure for cancer with the inducement of it.
Freelance columnist Mike Rosen’s radio show airs weekdays from 9 a.m. to noon on 850-KOA.
