George Will defends judicial activism on the grounds that it represents a valuable restraint on majorities. He adds that “judicial review amounts to blocking a contemporary majority in the name of a past majority — the one that produced the Constitution through democratic ratification conventions. Americans rightly regard this as an especially dignified majority — one owed special deference because it was the product of an unusually deliberative moment, the founding.”
Will equates criticism of judicial activism with criticism of judicial review. But most conservatives who criticize judicial activism don’t make that equation. When they speak of judicial activism (and perhaps a more precise phrase would be preferable) they mean not the mere striking down of democratically enacted laws, but rather the striking down of such laws based on an interpretation of the constitution that reflects the preferences of the judge, not the words and intentions of the Constitution’s framers. The activism, in other words, consists of the insertion of the policy preference, not just the act of review.
Under this account, it would not be judicial activism (or at least not bad judicial activism) for the Supreme Court to strike down an act of Congress establishing Christianity as the official relgion of the United States. However, a Court decision striking down the erection by a municipality of a modest display of the Ten Commandments at the entrace of a courthouse might well be considered activism (in the bad sense) because the Establishment Clause says only that Congress shall make no law respecting the establishment of religion.
And it is certainly judicial activism of the worst kind when the Court strikes down a popularly enacted law in whole or in part because the law runs counter to an emerging legal consensus in certain foreign countries. In that case, the will of the majority is not being blocked “in the name of a past majority” that should be accorded “special deference.” And even when the Court does not look to the views and practices of foreigners, but relies instead on evolving standards in this country, the “special deference to the founding” defense is not available.
Thus, while Will makes a valid point about the limits of dogmatic majoritarianism, he is mostly incorrect in claiming that conservatives are calling for judicial restraint in the name of such majoritarianism.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
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