Friday, July 15, 2005
What We Can Learn From Schlesinger's 1947 Formulation of "Judicial Activism"
In 1947, Arthur M. Schlesinger wrote an essay on the Supreme Court in Fortune contrasting the approach taken by the “judicial activists” (represented by Justices Black and Douglas), with the approach taken by the “champions of self-restraint” (represented by Justices Frankfurter and Jackson):
It depends on the cases accepted for review. For instance, the cases accepted encourages the activist judges of the current day to vote the way they do. If a different sort of focus was present, Breyer probably would strike down more legislation.
Ditto in the late 1940s. In time, Black and Douglas struck down a lot of laws, at least in the civil liberties arena. But, many of the cases taken in the late '40s focused on New Deal legislation both agreed with. Thus, control of the docket, and cert. decisions are of some concern here.
The problem with trying to measure "activisim" so defined, by just counting laws struck down, is that "clear and unambiguous Constitutional violations" are pretty thick on the ground these days. A Justice, in order to NOT be voting to invalidate large numbers of laws, would have to have given up almost entirely on the whole concept of enumerated powers, and limited government.
Which pretty much DOES describe the majority on the Court.
"Although I have not compiled the individual votes of the justices in the earlier period, a comparison would likely reveal that even the most activist justices when Schlesinger wrote would place near or below the least activist justices today."
Well, almost. It just so happens that I recently did look at the votes -- including those in which the Court could have struck down a federal law, but, in the aggregate, chose not to do so -- in a paper here. And, while there are some differences, the nut of it is that extremists -- on both the left and the right -- tend to me more activist than moderates.
Hello Brian,Post a Comment
Arthur Schlesinger, Sr. liked to muddy the waters by redefining the language. If you start out with the premise that black is white and up is down you can prove almost anything. His redefinition of judicial activism is nonsense.
An activist judge is one who substitutes his own Will for the actual meaning of the law, as originally understood and intended by those who wrote it (and, in the case of constitutional law, by those who ratified it). An activist judge is not simply one who votes to uphold the constitutionality of legislation least frequently. If that were the case then we would best be served by abolishing the Supreme Court altogether, and leaving Constitutional interpretation to Congress. (That's not an original idea, BTW; see Federalist No. 78.)
To rule that a statute is unconstitutional is an activist ruling ONLY if the statute is NOT actually in conflict with the originally understood meaning of the Constitution (or of both constitutions, State and federal, when there is a State constitutional issue involved).
In other words, what matters is Truth. If, when ruling on the constitutionality of a statute, a jurist tells the truth about the actual original meaning of the Constitution and how it applies to the statute in question, then he is ruling properly. But if he lies about the Constitution's meaning or applicability, perhaps inventing obfuscatory artifices like "emanations and penumbras" to get the result he wants, then he is behaving as a judicial activist. (In Federalist No. 81 the Framers suggested impeachment of such jurists!)
If a statute is in conflict with the Constitution, then for a jurist to rule that the statute is NOT unconstitutional is a lie, and an activist ruling, because such a ruling permits the legislative branch to effectively amend the Constitution without following the process in the Constitution which the People have defined for making Constitutional amendments.
You should think of constitutions as similar to limited powers of attorney, by which the People define certain enumerated responsibilities and grant certain enumerated powers to governments (State and federal) which are constituted for the purpose of fulfilling those responsibilities. The constitutions are the Peoples' instructions to the governments which are constituted to act as the People's agents, on their behalf. A proper judicial ruling is one which follows those instructions faithfully, and activist ruling is one which does not.
When analyzed in this way, Thomas and Scalia are plainly the least activist members of the SCOTUS, because they most consistently defer to the original understanding of the meaning of the Constitution and laws, and are least inclined to let their own Will color their legal judgment. Beyer, Ginsberg, Stevens, and Souter are the most activist jurists, because they are least deferential to the originally understood meanings of the Constitution and laws.
dave at burtonsys dot com