Whaddaya Mean, “Activist”?

 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. 

This isn’t to say that a provision such as an equal protection or privileges or immunities clause, or really any other rights-granting provision, is entitled to a boundless interpretation.  After all, it is inevitable that such provisions may conflict with each other, and will quite frequently conflict with Constitutionally granted government powers more generally.  When that happens, though, the solution isn’t to render one or the other clauses without meaning on that issue; it is instead to analyze whether the stated  goal of a policy or law under review may be accomplished in a way that is consistent with both provisions.  If it cannot, then it is the role of the courts to ensure that the legitimate government goal is accomplished in a manner that minimizes impact on the other clause(s) of the contract.   And that is why things like strict and/or intermediate scrutiny are so utterly essential to Constitutional law, even though they are not explicitly in the document; they provide an avenue or, as Dave argued, a Rule of Construction, by which we can resolve unforeseen conflicts between Constitutional provisions. 

Courts cannot be expected to read limiting language into Constitutional provisions to correct for a drafter’s failure to explicitly or implicitly account for issues the drafter may or may not have considered in the first place.  To do so would be, well, activism in the very worst sense of the word. 

Instead of short-circuiting the political process, decisions such as the Iowa SSM decision are usually best viewed as the Court preventing another branch of government from doing exactly that – no matter how old that short-circuit may be.  The proper response to such decisions, by those who disagree with them as a matter of policy, is to go back and correct the short-circuit.