{"id":4958,"date":"2009-04-27T13:33:02","date_gmt":"2009-04-27T18:33:02","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4958"},"modified":"2009-04-27T13:35:45","modified_gmt":"2009-04-27T18:35:45","slug":"restrained-judicial-activism","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/04\/restrained-judicial-activism\/","title":{"rendered":"Restrained Judicial Activism"},"content":{"rendered":"

\"\"<\/a>In contemporary legal discussion, “judicial activism” is roundly condemned.\u00a0 This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.<\/p>\n

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and\/or the States).<\/p>\n

The foundations of “judicial restraint” are originalism and textualism.\u00a0 “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case.\u00a0<\/p>\n

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to\u00a0require or prohibit.\u00a0 (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)\u00a0 “Textualism” demands respect for the clear meaning of these words.\u00a0 Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.<\/p>\n

Textualism has its limitations.\u00a0 <\/p>\n

As history shows, the apparently clear meaning of text can be easily distorted or disregarded.\u00a0 In numerous rulings after Plessy v. Ferguson<\/em>, 163 U.S. 537 (1896), courts interpreted “separate” rigorously and “equal” with great imprecision.\u00a0 In Slaughter-House Cases<\/em>, 83 U.S. 36 (1873), the Privileges and Immunities Clause of the Fourteenth Amendment was summarily eviscerated.\u00a0 Similarly, in D.C. v. Heller<\/em>, 554 U.S. 290 (2008),**\u00a0 the opening clause of the Second Amendment was voided.\u00a0 In decisions such as Crawford v. Washington<\/em>, 541 U.S. 36, courts have given open lists of factors to consider in certain situations, which list of factors lower or later Courts treat as if exhaustive requirements.\u00a0\u00a0 In any of these cases, activist implementation of personal policy preferences masquerades as “textualism.”\u00a0 These behaviors could be called “pseudo-textualism.”<\/p>\n

The value of textualism is also of no assistance when an issue or controversy arises regarding a matter not yet referred to directly by any law because the courts or legislative bodies remained silent on some now-controverted matter.<\/p>\n

If the plain words of a law can be subverted to advance a personal agenda, think how much more difficult it is to faithfully adhere to the virtue of originalism.\u00a0 How do we know what the “original intent” was of people long dead?\u00a0<\/p>\n

If the Framers fully recorded their intent, then we can examine those records.\u00a0 But all written records fall under the textualism paradigm, and all are equally subject to abuse as discussed previously.\u00a0 Since the best and often the only record of the Framers’ intent is the words they used to write their law and those best word are subject to misuse, other written records are even more vulnerable to “pseudo-textualism.”\u00a0 Court decisions usually present easier problems because courts usually explain their purposes in a decision.\u00a0 However, faithful analysis of any written record of intent is guided by textualism, and is subject to the same historically demonstrated abuses of “pseudo-textualism.”<\/p>\n

Where the laws are silent or records of intent are missing, courts must find other means to determine the intent of the Framers.\u00a0 Determining the intent of an accused is a common problem when intent is an element of a crime, so at first blush determining the Framers’ intent\u00a0in some law seems to be a manageable problem even without a written record of intent.\u00a0 However, determining the original intent of laws decades or centuries old is more complex than determining the intent of an accused felon.\u00a0 Intent can be surmised by analysis of circumstances surrounding the act in question.\u00a0 When a jury is asked to render a verdict based on circumstantial evidence of intent, the jury examines the circumstances with their contemporary understanding of contemporary situations and contemporary expectations.<\/p>\n

When attempting to apply this strategy to the intent of a law written long ago, the contemporary perspective is unavailable.\u00a0 Which circumstances mattered at the time?\u00a0 How would the Framers have reacted to the social and technological changes occurring since the law was given?\u00a0 At this point, historical analysis must replace legal analysis.\u00a0 But this is problematic because even historians disagree about the meaning of historical events and circumstances.\u00a0 All historical analyses are fraught with investigative biases.\u00a0 And these are the experts!\u00a0 There is no reason to place any confidence in the ability of jurists acting as inexpert historians to do as well, much less to do a better job.<\/p>\n

To supplement an inconclusive record of intent, courts have analyzed closely related activities or enactments by those who were contemporaries of the Framers.\u00a0 In the recent Heller<\/em> decision, the Court examined firearms ordinances contemporary to the Second Amendment on the presumption that these would illuminate what the Framers intended by the Second Amendment.\u00a0 In Crawford,<\/em> the Court examined the history of the confrontation right.\u00a0 In both of these cases, the Court majority and dissenters examined the same history and came to contradictory conclusions.\u00a0 How can we understand this except that in each instance, historical examinations aimed at finding the Framers’ intent resulted in something else?\u00a0 The jurists found historical evidence inconclusive, while others “found” it supporting their own personal policy agendas.\u00a0 This latter behavior could be called “pseudo-originalism.”<\/p>\n

The apparent objective nature of “judicial restraint” is a mirage.\u00a0 Except in those rare instances where the law is blessedly clear, courts, especially at the appellate level, examine challenged laws in the course of their duty.\u00a0 Even if they do their work by the standards of “judicial restraint,” they must apply their own sense of what proper policy and standards apply at each stage of the analysis.\u00a0\u00a0 When the words of the challenged law are not precisely on point or the intent of the Framers is unclear, the values of judicial restraint provide only a non-exhaustive list of factors to consider.\u00a0 They are not a complete exposition of how to arrive at a proper decision.<\/p>\n

When examining the rationale for a law, what does restraint require when the Framers’ rationale or premises are found faulty?\u00a0 Does “restraint” mean adhering to the result however faulty its derivation?\u00a0 Or does “restraint” mean adhering to the reasoning process, but taking into account updated facts, and adhering to the outcome even if the Court doesn’t like it?<\/p>\n

The ambiguous guidance of “judicial restraint” is not commanded by the text of the Constitution.\u00a0 Worse, the Ninth Amendment makes no sense except to command protection of individual rights enumerated nowhere in the Constitution.\u00a0 It is a law whose narrow reading compels a broad interpretation of individual rights.\u00a0 But how do jurists find these rights?\u00a0 MORE IMPORTANTLY, how did the Framers intend us to find these rights?\u00a0 In the rights the Framers recognized in 1790?\u00a0 Or in the rights the Framers would have reasoned to if they knew what we have since learned about the human condition?\u00a0 However we answer this question, our answer both informs and is informed by our personal beliefs.\u00a0 We must at least flirt with “activism.”<\/p>\n

Here is the crux of the problem: “judicial restraint” is a policy position.\u00a0 How much respect is “sufficient”\u00a0for precedent and legislative prerogatives?\u00a0 Which of several textual interpretations is controlling?\u00a0 And why?\u00a0 What facts are most persuasive regarding the Framers’ several possible or likely intentions?\u00a0 None of these questions have strictly objective answers; all require a court to make judgments about history, language, political or social theory, or legal philosophy.\u00a0 Whenever human beings make decisions like these, with the weight and impact of judicial decisions, they necessarily must employ their own personal moral compasses to evaluate the weight and implication of the evidence.\u00a0 They must be guided by their own personal beliefs.\u00a0 They must flirt with “activism.”<\/p>\n

Bald-faced disregard of law is not a behavior the courts should ever engage in.\u00a0 But laws will always be flawed; they will be incomplete, incoherent, or ambiguous.\u00a0 Courts may endeavor to achieve faithful interpretation and enforcement under the banner of “restraint,” but inevitably they will come to situations where familiar landmarks fail.\u00a0 At that point, courts must either duck the issue or find just, equitable solutions.\u00a0 To avoid negligence, courts must give regard to their own sense of right and wrong.\u00a0\u00a0 They must flirt with “activism.”<\/p>\n

Some may say this puts us on the slippery-slope to ruin.\u00a0 To this I can only say: life is lived on the slippery-slope to ruin.\u00a0 Every day.\u00a0 Whenever a court does as they all eventually must do, and makes a difficult decision, there will be those who will disagree with the court.\u00a0 This is always so because any decision at the juncture of power and propriety will annoy someone.\u00a0 And some of those so annoyed will complain of “judicial activism.”<\/p>\n

** In the interests of full disclosure, I do believe in an individual constitutional right to keep and bear fire arms, based not on the Second Amendment, but on the Ninth.\u00a0 My complaint with Heller<\/em> is not with the result, but with the implementation by the\u00a0Justices of their personal agendas; my complaint is with their activism.<\/p>\n","protected":false},"excerpt":{"rendered":"

In contemporary legal discussion, “judicial activism” is roundly condemned.\u00a0 This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law. The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference […]<\/p>\n","protected":false},"author":54,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,68],"tags":[],"class_list":["post-4958","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-judges-judicial-process","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/4958","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/54"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=4958"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/4958\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=4958"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=4958"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=4958"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}