(Vanity) Judicial Activism and Constitutional Meaning

JonathanBWilson.com ^ | April 27, 2005 | Jonathan B. Wilson

[JBW]

Thomas Sowell, writing on the pending Senate showdown over judicial confirmations, notes that:

"A disinformation campaign has already been launched to depict judges who believe in following the written law as being "activist" conservatives, just like liberal activists."

"Those who play this game of verbal equivalence can seldom, if ever, come up with concrete examples where conservative judges made rulings that went directly counter to what the written law says or who made rulings for which there is no written law."

It is indeed remarkable that the opponents of many of the current nominees can go so far in their mis-use of the English language.

The current nominees are, in varying degrees, conservative judges. They would make judicial decisions based on the plain language of statutes and the Constitution. They would follow traditional rules of judicial decision-making and avoid imposing their own choices and views on the law. This is the very meaning of conservativism.

And yet their opponents denounce them for being "activists", "extremists" and "outside the "mainstream." How can words be stretched to these conclusions?

Sowell correctly identifies the damage done by liberal activist judges who use the judicial pulpit to pronounce new law for society:

"The damage that is done by judicial activism extends beyond the particular policies that happen to catch the fancy of judges. Judicial ad-libbing creates a large area of uncertainty, making the law a trap for honest people and a bonanza for the unscrupulous."

As Philip K. Howard described so accurately in The Collapse of the Common Good, when any activity is at risk of being condemned--after the fact--then no activity is free from legal risk. Freedom becomes impossible when any action carries with it the potential for censure.

One of the current nominees, California Associate Justice Janice Rogers Brown , described how years of social decline (and years of liberal judicial activism) have debased our language and our understanding of right and wrong:

"[w]e are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War; Clarendon and Burke expressed similar concerns about the political transformations of their own time."

"It is always a disorienting experience for a member of the old guard when the entire understanding of the old world is uprooted. As James Boyd White expresses it: "[I]n this world no one would see what he sees, respond as he responds, speak as he speaks," and living in that world means surrender to the near certainty of central and fundamental changes within the self. "One cannot maintain forever one's language and judgment against the pressures of a world that works in different ways," for we are shaped by the world in which we live."

"This is a fascinating subject which we do not have time to explore more thoroughly. Suffice it to say that this phenomenon accounts for much of the near hysterical tone of current political discourse."

"Our problems, however, seem to go even deeper. It is not simply that the same words don't have the same meanings; in our lifetime, words are ceasing to have any meaning. The culture of the word is being extinguished by the culture of the camera. Politicians no longer have positions they have photo-ops. To be or not to be is no longer the question. The question is: how do you feel."

There is no easy solution for this phenomenon.

Congress can pass no law that will restore an historical sense of conservatism in the judiciary. Precedents established decades ago by judicial activists, declaring law from the bench, cannot be expunged overnight. Balance can be restored only over time and through years of more faithful Constitutional interpretation by subsequent generations of judges.

The fight over judicial confirmations is one that must be won by those who would restore this sense of balance. It must be won not only in the Senate, but in the public square, through persuasion, debate and the emerging conservative consensus.