I disagree with Hightower.

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Thursday, March 3, 2011

activist judges 2

In the third quarter of the 20th century, activism became part of the liberal tradition on the court, with Roe v Wade being the primary example. (I am prochoice by the way, but I wish Roe v Wade had been argued on the basis of the Ninth Amendment.) This is typically justified by arguing that the Constitution is a “living document”. Actually, it is a living document, with its changes coming in the form of amendments. But that is not what they mean. Getting an amendment passed is too hard, five justices is much easier.

Nowadays when people say that they believe in a "living Constitution" what they mean is one that lives up to their expectations of what it ought to say and has outlived those parts of it that they don't like.

There are two parts to the defense of this view from charges that it is activist, that is that it finds in the Constitution what one wants to find rather than what is there. I think that they are both powerful arguments in the public mind, but they seem to me to be examples of Argument by Confusion.

The first part is to say that there is no such thing as activism. As the Chief Justice of the KY Supreme Court said at one meeting that I attended: “If someone calls something an activist decision that just means that they don’t like that decision.” This argument is essentially an attempt to ridicule the notion of activism.

The second part is to offer an alternative definition of activist: an activist decision is one that overturns a precedent or a law. This definition is easy to apply. Of course, it is in conflict with one of the main functions of the Court which is keeping the other branches inside the bounds of the Constitution. This is perhaps a temporary argument to protect what the previous liberal courts have decided such as Roe v Wade. An example of that view can be found in activist judges
Notice that the second definition of activist allows the Court to create all sorts of law while not being classified as activist.

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