Bring on the activist judges

"Those goddamn activist judges!" That's a complaint frequently heard around the traps, and with the question of the next Supreme Court appointee still unanswered, one being hotly debated in the States at present. The complainst about judicial activism and the debate around it frequently features two apparently opposed ideas: that of original intent -- a theory often supported by conservatives -- and the idea that law, treaties and constitutions are 'living documents' that empower an activist judiciary to feats of ultra vires legerdemain. (Students of the Treaty of Waitangi will be familiar with this debate.)

Tara Smith blasts that dichotomy sky high. As Don Watkins summarises her argument, "'judicial activism' is a package deal. The question is not whether a jurist is 'activist' but what their activism consists of. Proper judicial activity, she says, should involve the interpretation and application of abstract legal principles -- fundamentally, the basic principle of 'rights'."

The salient question in assessing any nominee, then, is not whether a judge takes action, but the factors that guide his actions. To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts: First, that individual rights are broad principles defining the individual's freedom of action. The familiar rights of life, liberty, property and the pursuit of happiness subsume a vast array of particular exercises of this freedom, some explicitly named in the constitution (e.g., the freedom of speech) and some not (the right to travel). Second, he must understand that the government's sole function is to protect individuals' freedom of action. As Jefferson explained, it is "to secure these rights, [that] governments are instituted among men." Third, he must recognize that our government properly acts exclusively by permission.

Articles I, II and III [of the US Constitution] specify the powers of the three branches of government and the 10th Amendment expressly decrees that powers not delegated to the federal government are reserved by the states or by the people. The government, in other words, may do only what it is legally authorized to do.

These, correspondingly, are the considerations that should guide a judge's decision-making. It is precisely because action from judges is often needed that principled action--action premised on the basic principles of our republic--is essential. Only a nominee whose record demonstrates that he is so guided is fit to be entrusted a place on the Court.

Linked article: The Need for an Active Supreme Court Justice