Saturday, 30 July 2005

Judicial activism v rights

As George W.'s Supreme Court nominee John Roberts awaits confirmation, Tara Smith offers some thoughts on what a Supreme Court nominee should know as a minimum, and she takes a tilt at the notion of judicial activism as being in any way meaningful.
As the battle over John Roberts' Supreme Court confirmation begins, the one widely agreed upon measure of qualification is that he not be a "judicial activist." While conservatives have long railed against "activist" judges "making" law by legislating from the bench, many on the left in recent years have similarly criticized the Rehnquist court as "activist" (on behalf of executive powers, for instance). Charges of "activism" have essentially become a smear intended to discredit any decision with which one disagrees. More damaging, however, the use of this label, on all sides, fosters a serious confusion about the role of the judiciary.
What the job of the justices is, contends Smith, is the understanding and upholding of the individual rights and freedoms of its citizens, which is after all the reason that governments are constituted, and the recognition and protection of the fact that governments properly act only by permission.

And why are rights-based systems so sound? Well, as Tibor Machan explains here, they're not at all sound if they're misunderstood, as they are by those such as the present US Supreme Court justices in their egregious Kelo v New London decision. But when properly understood, a rights-based systems is sound because
it fits human beings better than the alternative, which would have a legal system constantly promote welfare or well-being in an ad hoc fashion. The fact is, no one can ever devise a legal system and public policies that guarantee good results. Putting people in charge of this massive project will backfire in a big way. Politicians are not gods (or even angels), so their plans are bound to contain many mistakes, and when they plan for others whom they do not know, that likelihood is overwhelming.
The question then is either a rights-based system or a centrally planned one, and that particular question was well-answered for all of us when the Berlin Wall fell. Or so you might have thought...

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