Mike Kueber's Blog

October 21, 2011

Revisiting judicial activism

Card-carrying conservatives have considered judicial activism to be a bad thing as long as I can remember.  Conservative politicians have bemoaned the judicial activists who ruled in favor of abortion rights, affirmative action, and public schooling for illegal immigrants, and they publicly pine for judges who believe in strict construction of the Constitution.  The image that comes to mind is that of Antonin Scalia or Clarence Thomas.

Because I try to base my opinions on principles instead of blindly following the conservative label, I sometimes go in a different direction than the conservative movement, and the issue of judicial activism is a good example of this.

Actually, there are at least two components to judicial activism, the first of which concerns so-called strict construction vs. loose construction.  The popular consensus is that strict construction will prevent judges from creating some newfangled rights out of thin air, like the right of a woman to have an abortion or the right of a murderer to be read his rights.  By contrast, loose-construction judges view the Constitution as a living, dynamic document that automatically evolves over time based on changing values of society (as determined by the judge).

Please note that the paragon of conservative judges, Antonin Scalia, has clearly stated that he does not want to be included in the pantheon of strict-constructionist judges.  Instead, he forcefully argues that the Constitution should be interpreted reasonably, not strictly or loosely.  But Scalia does belong to the Originalist camp of constitutional construction – i.e., he tries to interpret the Constitution consistent with how the drafters would have applied it.

The second component of judicial activism involves contrasting judicial activism with judicial restraint.  As defined by Black’s Law Dictionary, this form of judicial activism means “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”  By contrast, judicial restraint includes, among other things, following precedent (stare decisis), refusing to allow your personal public policy to play a role in your decision, and declaring a law unconstitutional only if obvious.

According to a blog in the NY Times today, conservatives are starting to think that this heretofore commendable trait of revoking only the most egregious laws as unconstitutional may have out-lived its usefulness.   You see, a humble, deferential judge might be unwilling to unilaterally declare that America’s monumental effort to provide universal healthcare insurance should be blocked by a judiciary because of some nebulous concern about the fed’s power to impose an individual mandate.  Judicial activists, imposing their own personal public-policy values, would not be reluctant to jump in, but any self-respecting conservative judge with a modicum of judicial restraint would not jump.

Situations like this have caused the NY Times and many pundits to conclude that the distinction between activism and restraint is illusory and that partisans accuse the judiciary of activism whenever the judiciary renders a decision that the partisan disagrees with.  The most famous examples of this occurred when the conservatives on the Supreme Court were accused of activism because they ruled for Bush over Gore and they provided for unlimited corporate speech in the Citizens United decision.  On the other side, liberal activism was blamed for the famous Brown v. Board of Education, Roe v. Wade, and Perry v. Schwarzenegger (same-sex marriage in CA) decisions.

In my congressional campaign in 2008, I addressed the issue of judicial activism in a way that think is consistent with conservative principles.  Regarding the individual mandate, my campaign brochure said:

  • “Congress needs to reform health insurance, but without starting down a slippery slope to socialized medicine.  Affordability should be achieved not solely by government subsidies, but also by cost-containment measures, such as tort reform and incentives to curb over-utilization.  Public-option insurance would be a disaster, and requiring an individual to purchase coverage is contrary to traditional Texas liberty.
  • “Government should be big enough to maintain our national security and keep our businesses honest, but not big enough to create a welfare state.  Unlike my Republican primary opponents, I don’t argue that our current expansion of the federal government is unconstitutional.  I don’t want the Supreme Court to make that important decision, just like I don’t want the Supreme Court to decide abortion issues.  Those decisions are for us voters to make.  If we think the government is getting too expansive, then were should vote out our federal politicians.”

I realize that there is a tendency in politics and law to adopt any position that lead to the result that you want.  That doesn’t make it right.  We should at least try to do the right thing for America.  I thnk John Kennedy said something about that.

April 28, 2010

What can we do to eliminate legislating from the bench?

Filed under: Issues,Politics — Mike Kueber @ 4:53 am
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While riding my bike today, I started thinking about strict construction.  It seems that every politician (at least every conservative) favors strict construction and is opposed to judicial activism (i.e., judges “legislating from the bench”), but the problem doesn’t go away.  Judges, especially federal judges, tend to think they are smarter than other people, and they have difficulty showing judicial restraint and deferring to politicians.  Instead of just howling at the moon, I wondered if there was something we could do about it.

Something we haven’t tried is to explicitly prohibit federal judges from interjecting their personal values when interpreting statutes and constitutional provisions.  This could be accomplished through an amendment to the Constitution.  Although constitutional amendments must have the support of two-thirds of the Senate and House and three-fourths of the state legislatures, I believe that there are that many strict constructionists already in office.  This proposal would have been an ideal fit for Idea #1 in the Tea Party’s Contract from America instead of its current Idea #1, which is to require each bill to identify the provision in the Constitution that gives Congress the power to do what the bill does.  (See my earlier blog – The Tea Party and a Contract from America.) 

Before attempting to draft an amendment to the U.S. Constitution, I decided we needed a simple, unambiguous definition of “strict construction.”  That is when this matter started getting complicated.  According to Wikipedia, the term has one meaning for judges and another for politicians.  For judges, it means focusing exclusively on the text and not drawing inferences (“Congress shall make no law” means no law); for politicians, it means conservative legal philosophies that emphasize legal restraint, such as originalism and textualism.  Because of these deviating definitions, the politicians’ patron saint for strict constructionism is Antonin Scalia, yet Scalia disparages strict constructionism while advancing “textualism” and “originalism” in A Matter of Interpretation, 1997: 

  • “Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”   
  • “Unlike an originalist, a strict constructionist would not acknowledge that ‘he uses a cane’ means ‘he walks with a cane’ because, strictly speaking, this is not what ‘he uses a cane’ means.”

Scalia’s textualism is a theory of statutory interpretation holding that a statute’s ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as (a) the intention of the legislature in passing the law, (b) the problem it was intended to remedy, or (c) substantive questions of the justice and rectitude of the law.

Originalism is a corollary of textualism and is a family of theories, principally the original-intent theory and the original-meaning theory.  Both of these theories share the view that there is an authority, contemporaneous with a constitution’s or statute’s ratification, that should govern its interpretation; their difference relates to what exactly that authority is – (a) the intentions of the authors or the ratifiers or (b) the original meaning of the text.

The primary alternative to originalism is most commonly described as the Living Constitution.  This is the theory of constitutional interpretation that claims the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases. 

Proponents for the Living Constitution can generally be broken into two viewpoints – (1) the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary, and (2) the flexible-intent view contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, living document.

Opponents of the Living Constitution often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.  This brings us full circle to our constitutional amendment to instruct justices that the U.S. Constitution lives through its prescribed amendment process, not through evolving values discerned by the justices.  To accomplish this end, I suggest the following:

Amendment XXVIII

The United States Supreme Court and other federal courts shall interpret all law based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.  Their interpretation shall not be based on non-textual sources.     

Second-guessing Supreme Court decisions

Filed under: Issues,Politics — Mike Kueber @ 3:36 am
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I don’t agree with the current practice of politicians who publicly complain about holdings in specific cases, like Obama did with respect to the Supreme Court’s recent decision on a corporation’s right to free political speech. Justices are supposed to render their decisions independent of political pressures. Furthermore, it takes a lot of chutzpah for any politician, even one with a law degree, to argue that the Supreme Court made a mistake in a particular decision Who are we to say we know more about analyzing a constitutional provision than nine Supreme Court justices? Instead of asserting that the Court made a mistake, I think we need to recognize their decision. But if we are unwilling to accept the result, we should change the law. In the case of constitutional decisions, this will require a constitutional amendment.