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Monday, February 28, 2011

activist judges 1

I think this term was originated to describe judges who went beyond the proper constraints that is placed on them by the Constitution. They embarked on the adventure of finding in the constitution not only what was there but also what they wished was there.
I think one of the earliest and worst examples was the Dred Scott Decision (1857)in which Chief Justice Taney decided that the Court should resolve the slavery issue. The Court essentially decided that not only was it constitutional for a slaveowner to pursue a runaway into a free state, but it was even unconstitutional for a state to prohibit slavery. That is that there could not be any "free states." Taney had to reach a long way for that.

To be clear, activism is not a liberal vs conservative issue. At least it is not in general. I’m not sure which “side” you would put Taney on. But the judges who decided Plessy v Ferguson, 1896, were activist judges on behalf of the popular cause of permitting the establishment of what was so delicately referred to as “Jim Crow legislation”. John Marshall Harlan dissented alone. They found in the Constitution what the society wanted them to find. The full meaning of it was that they simply ignored the 14th amendment and permitted the establishment of an American apartheid. The Warren Court’s Brown v Board of Education, 1954 reversed Plessy. Although Brown was bitterly opposed, Plessy was the activist decision. (see originalism 8-10-10 here for more)

An example of another activist decision in support of a conservative position is Lochner v. New York - 1905. The NY law in question limited the hours that bakers could be allowed to work in one shift or in one week. The court found the law in conflict with the due process clause of the 14th amendment. The state’s police power did not outweigh the "general right to make a contract in relation to his business." John Marshall Harlan and Oliver Wendell Holmes (and 2 others) dissented. Holmes apparently took a dim view of this attempt to write someone’s “preferred economic system” into the constitution: He noted, "Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory." History eventually supported Harlan and Holmes and the Lochner view was almost universally condemned.

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