Thursday, October 25, 2007

Debunking the Fantasy of Conservative Judicial Activism

Via Patterico's Pontifications, Ed Whelan effortlessly skewers this Sunstein and Miles piece on judicial activism.

Whelan discusses the attempts of the Left to morph the term "judicial activism" from its original meaning--that liberals use the court system to enact ideas they cannot get through legislation--into a sort of funhouse mirror definition--any change or refutation of a liberal legal decision is "activism."

There are a host of legal areas where conservative ideas and principles could win, and this makes liberals by turns nervous or angry. Abortion, gay marriage, gun control, taxes, education and others are areas where the original intentions of the Constitution have been distorted beyond recognition to fit liberal goals. And liberals can't handle the idea that the Constitution doesn't provide for their cause du jour (we've seen this before).

For several decades now, the courts have overridden the efforts of American citizens to enact policies through their local, state and national legislators on a broad range of matters that the Constitution leaves, wholly or largely, to the democratic processes. The courts have instead entrenched the left's agenda on such issues as abortion, the death penalty, pornography, marriage, criminal rights and radical secularism. This spate of liberal judicial activism has, in turn, triggered a broad reaction in favor of principles of judicial restraint, a reaction that is both legally sound and politically potent.

Many people, myself included, firmly believe that many issues including abortion and gay marriage should be decided by the people of a given state. Admittedly, this will allow for a patchwork of laws across the country, but the Founding Fathers expected very little national control of issues and, instead, deferred to localities to determine their own laws. The blanket approach to law as advocated by liberal abuse of the court system means that majority rule is completely voided; voting becomes a meaningless act once a court determines one isn't allowed to make certain decisions.

Whelan's logic and prose is well-argued and worth the read.