Wednesday, April 4, 2007

Birds of a feather

Clint Bolick of the Institute for Justice in Arlington, Virginia has an interesting take on judicial activism — he's all in favour of it, and interestingly enough as "the last line of defense against government running roughshod over individual liberty." This is unfamiliar ground, because judicial activism is usually taken as a trope by conservatives for extra-legislatural policy-making by fiat, usually of the progressive variety, and has served so much therefore as the grist for their hand-wringing mill about the loss of individual liberty instead.

Not that there is no occasion for criticism of the judiciary — far from it — but that criticism of activism is often mistaken for "the neutral application of constitutional principles when it hampers their own desired policy outcomes." To be sure, Bolick does not intend by judicial activism to mean when courts exert legislative or executive authority instead of judicial — noting the example of yesterday's U.S. Supreme Court's decision in Massachusetts v. EPA that effectively both reads added clauses into existing legislation and grants unelected regulatory agencies broader executive powers (discussion and links about the ruling here and here). Nor does he spare from criticism the tendency of courts to read spurious unwritten rights into constitutions or to read written protections of individual rights out of constitutions.

But better to call this behavior what it really is, which is not "activism" but lawlessness. By contrast, judicial activism -- defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries -- is essential to protecting individual liberty and the rule of law.

Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of republican government established by our Constitution. The courts, declared James Madison, would provide "an impenetrable bulwark against every assumption of power in the executive and legislative" branches, and "will naturally be led to resist every encroachment of rights expressly stipulated for in the constitution by the declaration of rights."

… Advocates of judicial deference contend that courts are ill-equipped to second-guess legislative determinations. If legislators carefully pondered the merits and constitutionality of legislation, that argument might have merit. But our legislators rarely even read the complex bills they pass, which all too often are manipulated by outside interests. Judges, by contrast, carefully sift through competing evidence presented by both sides. And they should. Courts that merely rubber-stamp legislation or executive branch decisions out of bland, or blind, "deference" evade their essential constitutional role.

Moreover, judicial deference to "democratic processes" is beside the point, given the proliferation of laws and regulations created by bureaucrats who are not in any meaningful way democratically accountable. And not only at the federal level.

The most explosive growth in local governments in recent decades has occurred in special districts and regional authorities that typically are accountable (if at all) to politicians, not voters. Ironically, courts typically defer to the "expertise" of regulatory bodies, rather than carefully scrutinizing their actions for compliance, not only with constitutional commands, but even to the vast legislative and executive powers that have been delegated to them. … Courts routinely apply a presumption of constitutionality to most governmental enactments that skews the playing field against individuals whose rights are violated.
In the abstract, Bolick is correct that courts have the only authority, when exercised actively and properly, to override government when it exceeds its constitutional powers at the expense of the individual, but unfortunately the litany of the judiciary's errors in this regard in favour of government over the individual relegates his stance to wishful thinking. It was not much longer after the Constitution of the United States was born that even its framers began to realize that the judiciary's capacity to undermine it instead of upholding it. Moreover, popular mythology of the courts' probity has rendered the judiciary effectively unimpeachable. Conservatives, as well as some liberals in the U.S., may make the mistake of confusing the frustration of their policy objectives with judicial activism, but activism in the courts is nevertheless exercised too often to advance what Bolick calls "lawlessness."