How Original Intent Does Not Equal Conservative Judicial Activism

Implicit in the public debate about the upcoming Supreme Court nomination is the assumption by many on the left that any nominee by President Bush is going to be an activist from the right who will seek to undo the aggressive legislating done by the Court in recent years with an equally aggressive counter response. Such a belief reduces the debate to nothing more than a raw power struggle between competing interests. And it completely misses the real point of the judicial activism debate.
Power Line, which is run by lawyers, offers all of us an insightful look at the question of judicial activism and how original intent leads to judicial restraint, not conservative judicial activism, and most certainly does not equal liberal activism:

…The fallacy here is in defining judicial activism and restraint as willingness to vote, respectively, to overturn and uphold legislation. If one accepts this definitional framework, then the moral equivalency argument sounds plausible. But if one defines activism and restraint more sensibly, based on the way judges interpret the Constitution, the argument collapses.
The key distinction here is that conservative judges tend to determine what the Constitution does and doesn’t protect and prohibit based on a careful reading of what the Constitution says and how it originally was understood. Liberal judges tend to determine the meaning of the Constitution based on their policy preferences, and because those preferences often bear little relation to those of the Constitution’s drafters, they rely on whatever they can get their hands on. It may be true that conservative judges often vote in support of their policy preferences too. But, as conservatives, their policy preferences are likely to reflect the traditional preferences and values that the authors of the Constitution believed in and set forth in the document…
…Policy preferences that aren’t rooted firmly in that document should be for legislatures, not courts, to impose.

Those of us who believe in an original intent approach to judicial behavior believe that legislatures are the place where democratic processes should play out in order to build a public consensus on important policy matters. It takes time and it frequently seems like a messy, inefficient process. But, consider the horrible alternative we now live with: When the Supreme Court legislates on policy matters, it immediately stops any public debate before there has been sufficient time to develop a public consensus. As a result, their action immediately yields a polarization on the topic which, as the abortion issue has shown, makes reasoned debate and building a public consensus practically impossible. We have become a more divided society due to judges legislating from the bench.
This issue has been discussed in previous postings entitled “The Supreme Court Has Converted Itself From a Legal Institution to a Political One” and Rediscovering Proper Judicial Reasoning.

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Marc Comtois
18 years ago

I read somewhere recently that Justice Scalia has started to refer to himself as a “Contextualist”. I like that, probably because one of the central tenets of historical research is to view historical events and actions within the context of the time in which they occurred.

Marc Comtois
18 years ago

One other thing: proof of attempts to divine “original intent” may be seen in the marked increase of references to the Federalist Papers by Sup. Court Justices. The historian Bernard Bailyn remarked on it in one of his works in the ’90’s (I can’t remember which) and I believe another historian, Jack Rakove did, too (though he believes that the whole idea of “original intent” is a fallacy).

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