I’m fairly annoyed by the brouhaha that has erupted over President Obama’s deeply inaccurate attack on the Citizens United decision.  One of the weird aspects of my annoyance, though, is that I find myself in deep disagreement with one of my favorite libertarian legal minds, Randy Barnett, and one of my favorite liberal legal minds, Jack Balkin. 

My general feeling on the matter is that clearly Obama has strong feelings about the correctness of the Court’s decision in Citizens United.  As much as I may find the hyperventilating over that decision silly, I can’t deny that the passions it has engendered are real.  Of course, I also have no idea what kind of a legislative fix Obama could possibly have in mind, but that’s neither here nor there.  The notion, advanced by Barnett, that such attacks are unprecedented is simply untrue, even if Obama’s attack was unusually harsh and, insofar as he mischaracterized the actual holding in the case, highly inaccurate.  The fact is that, like it or not, Supreme Court decisions have long been fair game for politicians to attack, particularly when those politicians want to overturn the decision via a legislative fix.  If the goal of the State of the Union is for the President to set the agenda for the year, then there’s no real reason to demand that the President avoid discussing parts of his agenda that involve overturning Supreme Court decisions. 

But this brings me to Balkin.  In refuting Barnett’s broadside against Obama, Balkin cites to a long quote from FDR’s 1937 State of the Union address.  Balkin points out that FDR spent fully a quarter of that State of the Union delivering a blistering attack on the Supreme Court’s repeated overturning of various New Deal programs.  Unfortunately, I cannot think of a worse example to show the appropriateness of a President attacking the Court than FDR’s 1937 State of the Union.  That attack was more than mere words, and more than merely attempting to chastise the Court for a decision the President found problematic.  Instead, its line that “means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world,” was a veiled threat to the Court’s political independence.  This veiled threat became overt just a few weeks later when FDR introduced the Judiciary Reorganization Bill of 1937 – better known as FDR’s court packing scheme.  Shortly thereafter, Associate Justice Roberts changed his voting habits in the “switch in time that saved nine.”

Nonetheless, the fact is that Presidents and legislators have been viciously and publicly attacking the courts for a very long time, whether it be over Roe v. Wade, Ledbetter, Terry Schiavo, or Dred Scott.  Sometimes they’ve been right, sometimes they’ve been wrong, but as long as we insist on viewing the President as the nation’s agenda-setter, the judiciary’s actions are fair for the President to attack with that agenda.

On the other hand, judges – even Supreme Court justices! – are human.  One might even imagine that they take pride in their work and care pretty deeply about what they do.  So when the President stands up just a few feet in front of a Justice and announces to the entire nation that his work product is actively evil, while misrepresenting what that work product actually said and did, it’s perfectly understandable that the Justice might exhibit a little emotion in their expressions, and maybe mutter some things under their breath. 

That’s not to say that I think it’s a good thing that Alito was caught on camera expressing that emotion – it’s not.  Regardless of whether we expect judges to forget their humanity, we do invest quite a bit in the notion that federal judges are supposed to be politically independent.  Yet the State of the Union is an inherently political event, and not only inherently political, but also inherently partisan.  Any appearance of taking sides during that event cannot be good optics for the public’s perception of judicial independence, whether or not the judge’s actions in creating that appearance are completely understandable and appropriate.  So to me, then, Alito’s mistake wasn’t in reacting the way he did – it was in attending an inherently political and partisan event like the State of the Union in the first place.

UPDATE: An exit question on Citizens United:  Let’s say a guy sees a big market for T-Shirts that say “Cut Bait With Senator Wormtongue.”  Because he wants to run this as a business, he incorporates to take advantage of limited liability.  The resulting corporation then seeks to market his wares on TV, the radio, or in print – whatever.  Should it be prohibited from doing so, given that it cannot market its product without advocating the defeat of Senator Wormtongue?  More importantly, should potential voters be prohibited from hearing such advocacy simply because the sponsoring entity is incorporated?  That is essentially the question that was before the Court in Citizens United.

“Reformers should be focusing on lifting limits on the flow of money from parties to candidates and restoring the role of the parties as the funders of campaigns. Instead of Candidate Smith asking Donor Gonzalez for money – and Donor Gonzalez asking for a favor in return – party chairman Robinson will ask thousands of donors for money on behalf of a slate of candidates, who will never know precisely whose gift was directed to them. That step will diminish corruption and the appearance of corruption.” ~ David Frum

I asked our own Mark Thompson what he thought of this idea, and Mark replied:

From a corruption standpoint, Frum’s proposal is a recipe for creating machine politics on a national scale.  Strengthening parties is a guaranteed way of ensuring that everything will be a party-line vote, which may or may not be a bad thing, depending on your perspective.  But because it strengthens parties so much, it just shifts the appearance of corruption from individual politicians with only one vote or one voice who are at least nominally accountable to the electorate to national party chairmen with near-absolute control of every vote in their party and of every agenda item in their party who are not even nominally accountable to the electorate.  It amounts to the Boss Tweed-ization of national politics.  My feeling is that corruption would be better addressed by weakening parties through various ballot reforms.  That’s also one of the benefits of this recent decision – it weakens political parties quite a bit.

This is the danger of campaign finance reform – the unintended consequences of ideas which on their face seem pretty good.  Similarly, while I really enjoyed Glenn Greenwald’s piece on Citizens United, I think that his idea for reform is both vague and probably a recipe for unintended consequences as well:

There are few features that are still extremely healthy and vibrant in the American political system; the First Amendment is one of them, and the last thing we should want is Congress trying to limit it through amendments or otherwise circumvent it in the name of elevating our elections.  Meaningful public financing of campaigns would far more effectively achieve the ostensible objectives of campaign finance restrictions without any of the dangers or constitutional infirmities.  If yesterday’s decision provides the impetus for that to be done, then it will have, on balance, achieved a very positive outcome, even though that was plainly not its intent.

I’m right with Greenwald on pretty much everything up to that last bit.  What does meaningful public financing of campaigns mean?  And even if we could find a way to actually publicly finance everybody without creating a huge barrier to entry in politics, would this really even begin to address the problem of corporate influence in Washington? If it would, then I’d fully support it, but I can’t help but think that the corporations and special interests would simply find other ways to lobby and peddle influence.  Transparency is the only thing I can think of that can really even begin to break the stranglehold corporate interests have over Washington.  All the rules and regulations we can dream up, they can get around.  And neither Frum or Greenwald seem to provide the answer to that.

Yesterday, the Supreme Court struck down its own precedent in order to overturn campaign finance laws prohibiting corporations and unions from making “independent expenditures” relating to political campaigns within the weeks leading up to an election.  The opinion is certainly significant.  For those of us of a more libertarian mindset, it is a huge blow for free speech.  For those of a liberal mindset, it is a huge blow for corporate influence over our electoral process. 

Needless to say, I find the majority opinion written by Justice Kennedy persuasive.  Surprisingly to me, I found Justice Stevens’ dissent unusually weak and full of obvious holes, at least outside of his arguments for stare decisis.  There are a couple of key issues in the case that are particularly worth discussing and that will also, hopefully, alleviate the fears that somehow this decision will mean more corporate dominance of our political process. 

At the outset, let us be very clear – the existence of a free speech issue here is very clear.  The laws prohibited virtually any kind of advocacy for a candidate by a corporation or union in the days and weeks leading up to an election.  Corporations and unions are nothing if they are not associations of actual, real persons.  Moreover, included in the concept of a “corporation” for these purposes are non-profit corporations that expressly exist as political advocacy groups.  However, certain corporations are expressly excluded from the law, to wit: media corporations. 

The majority argues, correctly in my view, that the distinction between media corporations and other corporations is arbitrary, and that indeed, this distinction proves that corporations in general cannot have meaningfully diminished First Amendment rights.  Professor Volokh beautifully and succinctly explains this argument here.  So, either corporations have something approaching full First Amendment rights, or the government has the authority to severely restrict the First Amendment rights of media corporations.

This brings me to the first example of why Citizens United decreases, rather than increases, the relative influence of large corporations over our elections.  This time I’ll point to Professor Volokh’s brief follow-up post, and especially his point 2.  Specifically, the result of the decision is that the longstanding monopoly of media corporations on the ability to widely disseminate editorial opinions on elections is at an end.  Except for the fact that we may find ourselves annoyed by the even-higher presence of campaign ads on our TV come election season, this is an altogether good thing for democracy. 

The second, and to my mind more important, result of this decision will be to make it easier for smaller businesses and non-profits to have a voice in the system.   In his dissent, Justice Stevens goes to great lengths to explain how the ban on pre-election political ads by corporations isn’t really a ban because corporations and unions can just act via a Political Action Committee (PAC).  He acknowledges that acting through a PAC is a burden on corporate speech, but claims that it is a burden that can easily borne by a sophisticated modern corporation (whether for-profit or non-profit).  Ok, fair enough.  The trouble is that he assumes that all corporations are sufficiently sophisticated and large to be able to set up a PAC, with all of the attendant regulatory and reporting requirements that entails.  Not so.  Indeed, as the majority points out, there are millions of corporations in the United States, but less than 2000 corporate PACs.  It doesn’t take a rocket scientist to figure out the types of corporations represented by those PACs, nor does it take a genius to figure out the types of corporations that are not represented by those PACs. 

In short, the existing system’s response to free speech concerns (PACs) acts only to ensure that large corporations are already able to have near-unfettered participation in the electoral process, as long as they first overcome some regulatory hurdles that are relatively minor for them but are significant for smaller, less sophisticated enterprises.  Smaller corporations are effectively shut out of the system, thereby reinforcing the oligopoly of influence over elections and influence markets enjoyed by their larger, more sophisticated brethren.  This changes that.  Yes, it removes the bar on direct participation that large corporations had to skirt via PACs, but this was hardly an effective or meaningful bar for those corporations in the first place.  In return, smaller corporations (again, including smaller advocacy organizations) have an opportunity to participate in the process on at least some level, reducing the comparative voice of the larger participants (though perhaps only marginally).

My expectation is that although this decision will certainly increase the voice of “corporations” writ large in our elections, it will do so by causing an increase in the number of corporate voices (again, remembering that this includes non-profit advocacy corporations) involved in the process beyond the usual suspects, and thus decreasing the relative voice of any one corporation or group of corporations.

ADDENDUM: Cf., Matt Welch:

When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the “voices of everyday Americans” that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or “Wall Street banks, health insurance companies and the other powerful interests,” in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now).

ADDENDUM II: Ilya Somin goes into a good amount of depth to explain why the inequality argument for prohibiting corporate speech would simply exacerbate the relative effects of other existing, and arguably more severe, forms of inequality.  In a nutshell, eliminating corporate speech magnifies the speech of famous athletes.  Somin also addresses the argument that “corporations are not people” here.

David Rivkin and Lee Casey take to the pages of the Wall Street Journal to claim that any individual insurance mandate would “likely” fail to pass Constitutional muster under even a modern understanding of Constitutional law and the commerce clause.  Whatever my thoughts on the value of an individual mandate, this is a shoddy piece of legal commentary that is transparently intended to provide legal cover for the claim that Obamacare is somehow unconstitutional in a way that Social Security and Medicare are not.

Let me start by saying this: if you want to go with a more or less purely originalist interpretation of the Constitution and 10th Amendment, I think you’ve got a strong claim that the mandate is unconstitutional.  Unfortunately, this interpretation of the Constitution hasn’t held sway for a good 75 years. 

What is so strange about the Rivkin and Casey piece is that they don’t even try to go this route, and instead try to make their argument by accepting the state of commerce clause jurisprudence.  They even approvingly quote the infamous recent case Gonzales v. Raich (the medical marijuana case) for its language that the commerce clause can be used to regulate an activity so long as there is a “rational basis to believe that such ‘activities, taken in the aggregate, substantially affect interstate commerce.’”  The implication is that the failure to purchase health insurance does not, in the aggregate, substantially affect interstate commerce.

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~by jfxgillis

Okay. So here’s the thing about the health care industry in the USA, especially the insurance sector. It stinks. Everyone knows it. Everyone feels it. We pay more for what we get, and we get less for what we pay for, than virtually any other developed country by any systemic measure. Even people with gold-plated policies they have by virtue of highly remunerative employment know those policies are overpriced even as they benefit from them.

The old World Health Organization rankings rated us 37th in the world. Granted, there’s honest dispute about that, but still, massaging the figures in our favor doesn’t get you that far up the rankings. We still stink. And the Commonwealth Fund’s ranking of 19 developed countries puts us dead last. And I do mean dead.

I believe in USA Number One!! and all, but I could live with it if we were say, fourth or ninth, or maybe even just outside the top ten, but  being number one only in per capita health care expenditures while last in health care outcomes isn’t just atrocious. It’s irrational. It’s a mystery. The odd thing is, the resolution to the puzzle doesn’t seem to be amenable to ideological explanation. On the one hand, we spend more on taxes on provision of health care through the public sector than many of the nominally more socialist countries ahead of us on the Commonwealth Fund chart. On the other hand, our health care is more dominated by the private sector than any other country on the list. Both Left and Right can agree that there’s something weird about being last in outcomes and first in expenditures. [Read more →]

Troy Davis, originally convicted of murdering an off-duty cop under questionable circumstances, will now have his case reviewed by order of the Supreme Court. Justice Scalia dissented, however, and his opinion isn’t exactly a model of human empathy:

“This court,” Scalia pointed out, “has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.”

Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.

Paul Campos seems to think that this is pretty callous, and at first blush, I’m inclined to agree. But I can at least understand where Scalia (and other conservative jurists) are coming from. The legitimacy of the legal system rests in large part on an assumption that justice is meted out through a predictable set of rules. Does granting Troy Davis another chance undermine the stability and predictability of our legal framework? Scalia seems to think so, though I’m not really equipped to decide one way or another. Does the court’s decision fundamentally alter a bedrock of judicial legitimacy? Probably not, though it could open the door to other, more expansive opinions in the future.

So let’s assume that Scalia is right and the court is needlessly meddling with well-established judicial procedure. As Campos notes, our flawless legal system is actually pretty hard on poor defendants. The original conviction was probably the result an over-worked public defender who doesn’t have the time or resources to adequately represent someone like Troy Davis. The failings of Georgia’s legal system are beyond Justice Scalia’s purview, but every one of his judicial opinions is another chance to seize the bully pulpit. Instead of delivering another lecture on procedural requirements, why not publicly (and in great detail) lament the state of the legal system responsible for Troy Davis’s plight? Why not take this opportunity to remind Georgia’s state legislature that their public defense system is a national embarrassment?

To be perfectly honest, I don’t want judges like Scalia inserting themselves into the judicial process, correcting structural problems on an ad hoc basis. Responsibility for the sorry state of Georgia’s courts rests squarely with that state’s citizens and legislators, and besides, how many defendants like Troy Davis won’t get the benefit of a high-profile Supreme Court review? But a public excoriation from the likes of Antonin Scalia might actually prompt the relevant authorities to do something for poor defendants. Now that would be an opinion worth reading.

Update: Per Mark and greginak’s recommendation, the Obsidian Wings posts on the Troy Davis case are quite good.

By Jay Adler

A lot of sports fans sighed the usual big one recently when the U.S. Court of Appeals in Washington, on a technicality, upheld a lower court decision in favor of the Washington Redskins, against plaintiff’s suit to force the team to change its name. Some of the Native plaintiffs are now considering taking the case to the Supreme Court.

At just about the same time, Nazune Menka, a graduate student in environmental science participating in the Native American Political Leadership Program at George Washington University, had the opportunity, with other students in the program, to meet with Supreme Court Justice Antonin Scalia. The students were given the chance to ask questions of Scalia, and Menka began a question about a significant recent decision, Carcieri v. Salazar, that had not been favorable to Native interests. Menka’s impressively sincere and ingenuous account of the meeting in Indian Country Today relates the rudeness she felt in Scalia’s cutting her off mid question and embarrassing her before the other students. “The case is a laugher,” she reports he told her.

That’s how many people feel about the team name and mascot issue too. Come on. Get real. Let’s talk about something serious.

Of much greater significance is Menka’s account of a question posed by another student. “He had earlier stated to another Indian student brave enough to stand and ask a question that the U.S. right to rule was by conquest and all Indian law was based off that.” [Read more →]

A fairly banal observation, I know, but one worth revisiting in light of the the latest Supreme Court appointment. Here’s a telling paragraph from Jeffrey Toobin’s excellent profile of Chief Justice John Roberts:

Roberts’s solicitude for the President and the military extends to lower-profile cases as well. In Winter v. National Resources Defense Council, the question was whether the Navy had to comply with a federal environmental law protecting dolphins and other wildlife while conducting submarine exercises off California. Roberts said no. “We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” the Chief Justice wrote. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.” Though Roberts was writing for only a five-to-four majority, he added, “Where the public interest lies does not strike us as a close question.”

Not a close question if you share Justice Roberts’ assumptions about national security and ecological protection, but a judge with a different decision-making calculus (a liberal, for example) would probably place greater emphasis on preserving marine life. In fact, it’s clear that in this case, the crux of Roberts’ decision hinged on a fairly complex cost-benefit analysis that has very little to do with what the law does and does not say. How should a judge weigh the prospect of degraded submarine readiness against the comparatively more likely yet less significant impact of naval training on marine life? I’m pretty sure there’s no universal decision-making framework for comparing these claims, and I’m equally sure that your answer to that question will depend heavily on your own ideological sympathies.

Which lends credence to one of Sotomayor’s more controversial utterances: namely, that the Court of Appeals “is where policy is made.” Unlike many of her critics, I don’t believe this comment reveals any sympathy for “legislating from the bench.” I think she’s simply acknowledging that the complexity of our legal system essentially forces judges to interject themselves into the political process. Not to pick on Roberts, but choosing the US Navy over a vulnerable dolphin population is an inherently politicized decision, and I’m inclined to think that other actors are better equipped to make that decision in the first place.

Judges will always enjoy some degree of interpretive latitude, but I think this example validates at least one conservative insight into the nature of the judiciary. When Chief Justice John Roberts rules in favor of the US Navy and against environmentalists, he’s rendering judgment on a question best left to the popularly-elected branches of government. Voters (or their elected representatives) ought to be able to weigh in on a controversy that has little to do with interpreting the law and everything to do with their values and interests.* If Sotomayor demonstrates a willingness to defer to her elected counterparts on the bench, I’ll be more than satisfied with her elevation to the Supreme Court.

*Even if you’re in favor of technocratic management, I don’t think the court is particularly well-equipped to make non-legal decisions.

UPDATE: Esteemed co-blogger Mark Thompson sets the record straight (to put it charitably) in comments, noting that the Winter ruling involved a motion for temporary injunctive relief, which pretty much has to be adjudicated by the courts. I still think justices should place a premium on judicial deference, and Toobin’s example does suggest that Supreme Court rulings are rarely cut-and-dried, but Winter v. National Resources Defense Council is not a case where the judiciary should have deferred to the legislature.

Daniel Larison has put together some excellent thoughts on the current leading objections to Sonia Sotomayor’s nomination to the SCOTUS.  I have my differences with Larison’s preferred jurisprudence, but he does a far better job than most explaining why the current primary objections to Sotomayor make exceedingly little sense from a conservative standpoint. 

Larison’s explanation that the opinion in Ricci is better explained by the messy state of existing employment discrimination law than by judicial activism is pretty much exactly correct.  As he further notes, in Ricci the plaintiff was an abnormally sympathetic individual fighting against a powerful government entity – if “empathy” were guiding Judge Sotomayor’s decisionmaking more than precedent and objectivity, then she would have sided differently.   Indeed, the opinion in Ricci is remarkable only for its brevity – one paragraph simply stating that the Court agreed with the opinion of the district court and that the City was exempt from suit because to hold otherwise would mean that the City would have been liable no matter what it did in the case.   This is not the type of decision you would expect out of a judge seeking to make policy with her opinions.   

Frankly, reading the district court’s decision in Ricci, it’s tough for me to see how a lower or appellate court could have reached a different conclusion.  It was essentially uncontested that the test at issue was indisputably in violation of existing employment discrimination law.  The result of this violative test was that the plaintiff would have been eligible for promotion.  Realistically, it should be beyond dispute that a government entity has to be able to correct its own violations of the law; it probably should also be beyond dispute that one who would otherwise benefit from that violation of the law (however inadvertently, and however sympathetic they may be) is not entitled to that benefit, at least not until they have actually received it.   Short of overturning or weakening settled aspects of Title VII (which the SCOTUS may well choose to do), it’s difficult to see how the district court or the appellate court could have reached a different conclusion in this case.

Larison’s strongest paragraph, though, is with respect to the brouhaha over Sotomayor’s statement that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”  Larison writes:

Suppose for a moment that a conservative Catholic man in a similar position said that he hoped that the richness of his religious tradition would inform and shape his judgments that would more often than not help him to make better judgments than someone without that background. Such a person might reasonably and legitimately claim this. No doubt there would be a comparable freak-out in certain circles on the left that theocracy was on the march, while conservatives would declare it outrageous (indeed, the imposition of a religious test!) that anyone would object to a statement about the importance of the man’s faith to his formation and thinking. She is not asserting that Latinas are naturally superior judges, nor is she even saying that they are necessarily better on account of their experiences, but that she hopes that they would be. One might almost think that her recognition that impartiality is something to be pursued, but that it is never fully achievable, would be considered a refreshingly honest admission that judges have biases and are shaped by their past experiences.

This sounds exactly right to me. 

Ultimately, the fact is that we don’t know a heck of a lot about where Judge Sotomayor stands on various hot-button issues despite the fact that she’s been an appellate judge for quite some time.   To me, this may actually be one of her best qualifications – this does not appear to be someone who has a reputation for fiery polemic or attention-seeking, but is instead someone who pretty clearly seems to have a calm and measured temperament. 

To be sure, my very initial readings on Judge Sotomayor’s decisions raise a few question marks – just not on issues that are likely to enrage modern movement conservatives even as they don’t appear to be libertarian-friendly.  By and large, though, I have yet to see an objection to her that has a lot of validity to it.  This isn’t to say that there aren’t any – just that they haven’t been made yet.

UPDATE: Larison has a follow-up post that is equally well worth a read.

“I’ve only seen the headlines, but I expect all the clowns put on their clown suits this morning and are presently climbing out of their clown car at the studio. I’m thinking liberal, activist, Puerto Rico isn’t even a state and the Bronx isn’t either, law-into-her-own-hands, affirmative action, closeted lesbian, the guy in front of me at Dunkin D’s said she wasn’t too bright. On that last point, it’s well known amongst alums that whereas the Princeton Sam Alito graduated from in 1972 was a bastion of civilized learning, the Princeton Sotomayor graduated summa cum laude from four or five years later was a hippie “learning cooperative” where minorities got a coupon book of “A” grades upon admission to use up as needed, and the concept of truth was rigorously suppressed by the leftist faculty.”

Kieran Healy on President Obama’s pick of Sonia Sotomayor for the Supreme Court

 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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