Andrew Colclough

Like many catchwords, "judicial activism" has acquired so many different meanings as to obscure more than it reveals. Yet it is not a term that can simply be ignored as intellectually "void for vagueness," for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative.

"Judicial activism" and "judicial restraint" raise logically obvious but often ignored questions: Activism toward what?  Restraint toward what?  Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?

Activism or restraint toward one of these does not imply the same toward all the others, and may in some instances imply the opposite toward some other or others. For example, a "restrained" jurist, attempting to hold fast to the "original intentions" of constitutional provisions, must actively strike down statutes passed by a legislature which repeatedly over-steps the bounds of those provisions. Conversely, an "activist" jurist may passively accept expansive legislative action of a sort deemed consistent with general constitutional "values," even if lacking specific constitutional authorization or entering a "gray area" of constitutional prohibitions. One of the more striking examples of the latter was Justice William O. Douglas' repeated deference to the legislature in economic and social legislation, using language dear to the heart of those who believe in judicial restraint,¹  though Douglas was a classic judicial activist.

In the analysis that follows, the first priority will be to operationally distinguish judicial activism from judicial restraint, which involves focusing on the concept of "original intent."  Only then is it possible to move on to the substantive issues dividing them. Finally, the prevailing image of "liberal, activist judges" will be questioned, the argument being that judicial activists have historically come in various political varieties.

 

MEANING VERSUS "INTENT"

 

At the heart of the concern over judicial activism is the fear that the judge will impose his own personal preferences in his decisions, to such an extent as to ultimately negate the very meaning of law as a body of known rules to guide individual and social conduct. Formally, at least, both supporters and opponents of judicial activism deplore any such result, the former denying that this happens and the latter asserting that it does.

Supporters of judges and justices labeled as judicial activists often assert that these jurists are restrained by the Constitution and are therefore necessarily active against individuals, groups, institutions, and policies in violation of constitutional provisions or principles. The empirical validity of this assertion is not an issue, at this point. Such assertions provide an area of common ground between critics and supporters of particular judicial practices, thus aiding in the definition of judicial activism. It is not mere activity or passivity that is at issue, but the basis of that activity or passivity. In a constitutional government, a jurist is said to be activist-- in the sense objected to-- to the extent that he settles cases on grounds extrinsic to the Constitution. It is ultimately the Constitution toward which the jurist is "activist" or "restrained," though similar principles apply to the construing of statutes. The controversies which rage over judicial activism are controversies as to the extent to which jurists decide cases on grounds extrinsic to the Constitution, and in particular on grounds counter to the Constitution. That such decisions may also violate the popular will in some of its various meanings, or in its various manifestations through different government agencies, is another issue--important, but not necessary for the preliminary task of establishing definitions.

The first order of business, then, is to distinguish (1) attempts to decide cases on grounds intrinsic to the Constitution, however easy or difficult this may prove to be in practice, from (2) attempts to use extrinsic considerations deemed to be of equal (or superior) value to the Constitution.

This seems timely. Be sure to click through and read the full piece.

WASHINGTON – A federal spending surge of more than $20 billion for roads and bridges in President Barack Obama's first stimulus has had no effect on local unemployment rates, raising questions about his argument for billions more to address an "urgent need to accelerate job growth."

An Associated Press analysis of stimulus spending found that it didn't matter if a lot of money was spent on highways or none at all: Local unemployment rates rose and fell regardless. And the stimulus spending only barely helped the beleaguered construction industry, the analysis showed.

With the nation's unemployment rate at 10 percent and expected to rise, Obama wants a second stimulus bill from Congress including billions of additional dollars for roads and bridges — projects the president says are "at the heart of our effort to accelerate job growth."

Transportation Secretary Ray LaHood defended the administration's recovery program Monday, writing on his blog that "DOT-administered stimulus spending is the only thing propping up the transportation construction industry."

Road spending would total nearly $28 billion of the Jobs for Main Street Act, a $75 billion second stimulus to help lower the unemployment rate and improve the dismal job market for construction workers. The Senate is expected to consider the House-approved bill this month.

But AP's analysis, which was reviewed by independent economists at five universities, showed the strategy of pumping transportation money into counties hasn't affected local unemployment rates so far.

"There seems to me to be very little evidence that it's making a difference," said Todd Steen, an economics professor at Hope College in Michigan who reviewed the AP analysis.

And there's concern about relying on transportation spending a second time.

"My bottom line is, I'd be skeptical about putting too much more money into a second stimulus until we've seen broader effects from the first stimulus," said Aaron Jackson, a Bentley University economist who also reviewed AP's analysis.

It's familiar because I wrote the exact same thing.... except that was last November....and without an official study. And I'm not really boasting. I don't have some special power of logic or ability to predict the future. All I did was apply a couple, rather simple logical mathematic and economic principals. The credit should really go to the wisdom gained from reading a couple dusty old papers on economics...

The problem here is that logic is not necessary to generate social policy, or political capital. Being seen to be 'doing something' to fix the economy, does not require logic and rationality, evidence from results, or much of anything at all. Simply doing something, and being seen: That's politics. Thomas Sowell refers to this phenomenon as The Vision of the Anointed (the title of one of his excellent books, which I am reading). What mattered with the Stimulus was the Vision => not the results. 

I guess I should have bet some money on it. Actually, I guess we all did. Almost $1 Trillion, in fact... 

As far as The Vision of the Anointed is concerned, here are some quotes, for those interested in the concept:

"One of the most important questions about any proposed course of actions is whether we know how to do it. Policy A may be better than policy B, but that does not matter if we simply do not know how to do Policy A. Perhaps it would be better to rehabilitate criminals, rather than punish them, if we knew how to do it. Rewarding merit might be better than rewarding resultsif we knew how to do it. But one of the crucial differences between those with the tragic vision and those with the vision of the anointed is in what they respectively assume that we know how to do. Those with the vision of the anointed are seldom deterred by any question as to whether anyone has the knowledge required to do what they are attempting." -- P. 109

"In the tragic vision, individual sufferings and social evils are inherent in the innate deficiencies of all human beings, whether these deficiencies are in knowledge, wisdom, morality, or courage. Moreover, the available resources are always inadequate to fulfill all the desires of all the people. Thus there are no "solutions" in the tragic vision, but only trade-offs that still leave many unfulfilled and much unhappiness in the world." -- P. 113

"The presumed irrationality of the public is a pattern running through many, if not most or all, of the great crusades of the anointed in the twentieth century--regardless of the subject matter of the crusade or the field in which it arises. Whether the issue has been 'overpopulation,' Keynesian economics, criminal justice, or natural resource exhaustion, a key assumption has been that the public is so irrational that the superior wisdom of the anointed must be imposed, in order to avert disaster. The anointed do not simply to have a disdain for the public. Such disdain is an integral part of their vision, for the central feature of that vision is preemption of the decisions of others." -- P. 123-124

"In their zeal for particular kinds of decisions to be made, those with the vision of the anointed seldom consider the nature of the process by which decisions are made. Often what they propose amounts to third-party decision making by people who pay no cost for being wrong--surely one of the least promising ways of reaching decisions satisfactory to those who must live with the consequences." -- P. 129

"The vision of the anointed is one in which ills as poverty, irresponsible sex, and crime derive primarily from 'society,' rather than from individual choices and behavior. To believe in personal responsibility would be to destroy the whole special role of the anointed, whose vision casts them in the role of rescuers of people treated unfairly by 'society'." -- P. 203

"A California farmer can always show the television audience the abundant crop he has been able to grow because of federal water projects. But no one can videotape the crops that would have been grown elsewhere, at less cost to the economy, if there were no federal subsidies to encourage the use of water delivered at great cost into the California desert instead of water delivered free from the clouds elsewhere." -- P. 257

"In the anointed we find a whole class of supposedly 'thinking people' who do remarkably little thinking about substance and a great deal of verbal expression. In order that this relatively small group of people can believe themselves wiser and nobler than the common herd, we have adopted policies which impose heavy costs on millions of other human beings, not only in taxes, but also in lost jobs, social disintegration, and a loss of personal safety. Seldom have so few cost so much to so many." -- P. 260

"There are no solutions; there are only trade-offs." -- P. 142

"To those with the vision of the anointed, the question is: What will remove particular negative features in the existing situation to create a solution? Those with the tragic vision ask: What must be sacrificed to achieve this particular improvement?" -- P. 135

In case you were wondering - I hold to the tragic vision. How about yourself?

People who talk about the corrupting influence of money seem to automatically assume that it is only private money that is corrupting. But, when governments have billions of dollars invested in the global warming crusade, massive programs underway and whole political careers at risk if that crusade gets undermined, do not expect the disinterested search for truth.

Among the intelligentsia, there have always been many who are ready to jump on virtually any bandwagon that will take them to the promised land, where the wise and noble few-- like themselves-- can take the rest of us poor dummies in hand and tell us how we had better change the way we live our lives.

No doubt some climate scientists honestly believe that global warming poses a threat. But other climate scientists honestly believe the opposite. That is why the raw data have had to be destroyed before the latter get their hands on it.

This is tragically the case as regards many other issues, besides global warming, where data are made available only to the true believers and kept out of the hands of those who think otherwise.

-Thomas Sowell

For the record - I just got a copy of Sowell's The Vision of the Anointed. Once you understand the differences between the Constrained Vision and the Unconstrained Vision (something he goes into more depth on in A Conflict of Visions)- you start to see hallmarks of either vision in all sorts of places. Climate 'Science' is a great example of how absurd and destructive a good thing can become once it enters the political process. Ultimately - 'The Vision' becomes all that matters. Empirical results, studies, and rational thinking (which are actual aspects of science), are tossed out if they don't fit with or support The Vision.

People who are passionate about science should be outraged at the way politicians and ideologues have perverted their discipline into the over-the-top turn-or-burn absurdity it has become.

Looking forward to this book.

“The fatal misstep of intellectuals is assuming that superior ability within a particular realm can be generalized as superior wisdom or morality over all.”

“Many intellectuals and their followers have been unduly impressed by the fact that highly educated elites like themselves have far more knowledge per capita – in the sense of special knowledge – than does the population at large. From this it is a short step to considering the educated elites to be superior guides to what should and should not be done in a society. They have often overlooked the crucial fact that the population at large may have vastly more total knowledge – in the mundane sense – than the elites, even if that knowledge is scattered in individually unimpressive fragments among vast numbers of people.”

-Thomas Sowell

Assume that the legislation establishing government control of medical care is passed and that it "brings down the cost of medical care." You pay $500 a year less for your medical care, but the new costs put on employers is passed on to consumers, so that you pay $300 a year more for groceries and $200 a year more for gasoline, while the new mandates put on insurance companies raise your premiums by $300 a year, how much money have you saved?

Math, like economic facts -> politically inconvenient.

In reality, scarcity is the cause of many of the difficult choices individuals face. However, governments prefer to find "greedy-bastard" bogeymen to blame. This allows governments to play as saviors rather than as the parasites causing the problems in order to benefit favored constituencies at others' expense. But government has no power to eliminate scarcity.

Government, beyond its role of defending voluntary arrangements against force and fraud, only makes the effects of scarcity worse. It substitutes decisions by people with worse information and incentives, backed by the power of coercion, for decisions by people with better information and incentives. That is why it is actually government "solutions" that increase the influence of greedy bastards in society. After all, "greedy bastard" is an excellent description of someone who demands power over others without cost or their willing consent; and falsely blames others to gain it.

Socialism's greatest success is effectively blaming Capitalism for all of its faults.

Now if only I could find a really good scapegoat for all the moronic things I've done... Unfortunately, nothing can repel buffoonery of that magnitude. :)

"The first lesson of economics is scarcity: there is never enough of anything to fully satisfy all those who want it. The first lesson of politics is to disregard the first lesson of economics." 
-Thomas Sowell