Note – Will and I exchanged a few emails on judicial activism, cultural change, and the courts’ public legitimacy in the wake of the Iowa gay marriage ruling. We’ve published an edited version below:

Will: I’ve enjoyed your and Dave’s posts on originalism – are you familiar with Rosenberg’s “hollow hope” argument against court-instigated progressive change? In a nutshell, Rosenberg argues that the courts are a bad forum for progressive change because they a) frequently incite cultural backlash, b) defuse efforts aimed at legislative and cultural change and c) are generally inhospitable to grassroots activism.

Mark: Sully linked to this piece from Prof. Volokh that I think serves as a very nice linkage between my point on judicial activism and Rosenberg’s empirical argument on judicial capacity for creating change (though not his normative argument). Volokh’s argument is that the Iowa legislature’s decision to include sexuality in its anti-discrimination laws initiated a “slippery slope” by creating an analogue for the Iowa Supreme Court to apply in determining whether the prohibition on SSM violated Equal Protection. Assuming Prof. Volokh is correct, this suggests the following:

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 I wanted to give a lawyer’s perspective to the discussion of judicial activism the decision has spawned between William, John, and E.D., arising in part due to Mr. Sullum and Mr. Whelan.  To be sure, I think E.D. is wrong to the extent he argues that the Iowa decision is justified because it reaches a rights-enhancing, morally just result; William is exactly right in arguing that the process by which the Court reached its decision is more important than whether the result is just an essential element of whether a decision is “undeniably good.” 

Where I get frustrated with cries of “activism,” though, is that they rarely engage the text of the very documents that underly their concern for separation of powers.  Certainly “results-oriented” judging is something that is deeply problematic and improperly usurps the role of the legislature, but such judging is far more rare than believed (by critics of both the Right and Left, I might add), and complaints of “results-orientation” usually bespeak a lack of familiarity with the subject at hand. 

The most honest definition of activism as a perjorative, and the one advanced by Sullum, John, Daniel Larison in the comments to John’s post, and (I think) William, is that activism is a defiance of the original intent of a Constitution’s drafters, that creates a sort of lawless judiciary that usurps the role of the other branches.

There are a number of problems with this argument, and a focus on “original intent” is far from the exclusive means of putting forth a jurisprudence that relies on a static set of rules for what is and is not within the realm of the judiciary. 

The first problem, as Br. Dave so beautifully explained in this must-read post, is that arguments for originalism are typically based on a conception of originalism that really has its roots in the New Deal – and thus is not originalism at all. 

The second problem is that “original intent” is a meaningless standard that itself engenders the very sort of judicial activism that it purports to avoid.   Constitutions are the result of numerous contributions and compromises from and between individual drafters; the idea that these drafters had any kind of uniform “intent” is, frankly, absurd.  All we have to go by are the actual words that they chose to use to express their contributions and compromises.

To be sure, if we are to have any set standards, we may need to look at the definitions of those words as they were understood at the time.  But if we stop at those definitions, then we will often wind up with results that are far more libertarian than most originalists, including even some libertarians, are willing to concede.  Indeed, sometimes those results can be so libertarian as to be absurd – what if, for instance, Justice Scalia had chosen a strictly textual interpretation of the 2nd Amendment in Heller, resulting in a right to own even a nuclear weapon?   What, then, becomes the limiting principle? 

To the originalist (including originalists who acknowledge the lack of a definable “original intent”), the limiting principle is whether a particular restriction was common at the time the Constitutional provision entered into law.  The presumption here is that if a law was common at the time, then a constitutional provision cannot be deemed to prohibit that practice.  But this is ultimately no different from the problems with divining the “intent” of the drafters.  It limits the power of their words without any reference to the words themselves, in effect assuming an ambiguity and resolving it in favor of the legislative body where no ambiguity exists. 

Sullum is guilty of making this assumption when he writes:

It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible).

But the issue probably was NOT intelligible, and even if it was, it was certainly not considered during the drafting of the amendment! Yet originalism assumes that the drafters’ failure to consider the issue means that the language cannot be read to reach that issue.  As such, the language is to be read as if it specifically exempted that issue from its reach.  This gives drafters entirely too much credit, to say the least, and without justification reads into the provision limiting language the drafters hypothetically would have inserted had they known how the provision would be applied.

A Constitution is only as good as the words it uses, just as a contract is only as good as the words it uses.   And just as with any contract, attempts to create ambiguities based on facts that were never incorporated into the document’s language are the truly problematic – and indeed “activist” - endeavors.   The far more appropriate role for the judiciary in each instance is to interpret the contract/Constitution only as written, and to insist that, if the parties wish to account for some sort of a changed or unconsidered circumstance, they amend the agreement. 

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