>A couple of points I'd make:
>
>(1) "Judicial activism" "rewriting the Constitution" started with the
>Right in the 19th Century. Dred Scott ACTIVELY deprived blacks of
>citizenship rights which were inherently given to them in the
>Consitution. And of course there was the wholesale importation of free
>market ideology, courtesy of the Republican railroad lawyers, which
>exists nowhere in the Constitution. Thus, the whole "judicial
activism"
>charge is a transparently hypocritical attack.
As consolation to myself for not going to hear Misha Mengleberg (a Dutch jazz--that's what the idiom's called--piano player) play at the Velvet Lounge tonight I thought I'd post a bit more of David Kairys' intro essay, regarding judicial activism and judicial restraint. He nicely sketches a break down of the binary:
Judicial activism is not consistently liberal and judicial restraint is not consistently conservative. If one looks at the purposes and effects of particular government intrusions and places judicial activism and restraint in specific contexts, the most apparent patterns and the best generalizations are more complicated and have more to do with substantive goals than judicial means.
Conservatives tend to favor less intrusive government when it comes to regulation or interference in a free-market economy and more intrusive government when it comes to compelled conformity to religious, moral, cultural and lifestyle norms. They champion judicial activism to prohibit government intrusion on the unrestrained operation of the market and to invalidate electoral and other reforms that tend to interfere with the advantages of wealth.
Liberals tend to favor less intrusive government when it comes to individual autonomy in matters of religion, morality, culture and lifestyle and more intrusive government when it comes to regulation of the economy and electoral and other democratic reforms. They champion judicial activism to prohibit government intrusion on personal freedom or imposition of compelled conformity.
Both conservatives and liberals see themselves as protecting freedom and see each other as favoring impermissible government intrusion. Neither conservatives nor liberals seem seriously bothered by judicial interference and creativity or abandonment of established rules and precedents in furtherance of their higher goals.
These patterns are not new. Probably the most determined and successful advocates of judicial restraint in our history were liberals in the early 20th Century. The conservative Supreme Court of that period invalidated economic legislation aimes at protecting working people and providing the economic safety net that we have until recently taken for granted. For example, in what is usually called the Lockner era, laws limiting the hours of labor were invalidated by the Supreme Court as unconstitutional infringements on the rights of employees to enter into contracts. The courts were interfering with legislative intrustions into the economy. Liberals opposed this interference by advocating judicial restraint, conceived--like the conservative conception of our time--as a neutral, independent, univeral and overriding principle that transcended substantive goals or politics.
[end excerpt]
Portions of this may have been drawn from Kairys' _The Politics of Law_ (Basic Books, Third Edition, 1998).
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