Friday, January 7, 2011

Judicial Activism?

In a previous post, I talked about how the debate over constitutional interpretation mirrors a similar debate about biblical interpretation.  With regard to the constitution debate, I talked about a spectrum ranging on the far right with textual literalists (i.e., the text speaks for itself in its literal meaning) to the left extreme where the text is a living, breathing document in need of constant reinterpretation.  I could not think of a good label for those on the left extreme, so I called them "pragmatists," and "judicial activists." 

My friend Peter Pope, himself a lawyer, rightly pointed out that by using the term judicial activist, I had unwittingly used a pejorative term used by right wing pundits to describe left wing judges.  I meant the post to be neutral and descriptive, but was properly chided by Pope for my improper use of the language. 

Yet, this whole topic gets me thinking.  Though right wing commentators often use the term "judicial activist" or the even more inflammatory language of "legislating from the bench" I have never been able to determine what they really mean.  To my understanding (and I am no legal or constitutional scholar), there is not one law, one sentence, one word or even one letter in any law code or in any piece of the constitution that was written by means of a judicial decision.  By my understanding, every law, every word of every law, is written by legislatures.  No judge, by making a judicial decision, ever gets that decision written down in a law code. 

Sure, through judicial review, judges can rule certain laws unconstitutional, and through judicial decisions, judges get to interpret laws, but they never write any of the laws, that is for legislatures.  So, the language of "legislating from the bench" seems to be completely false and inflammatory rhetoric.  In the sense that right wing pundits use the terms "judicial activist" and "legislating from the bench"  all judges are judicial activists, right and left alike.  In making any judgment on a given law, the judge is interpreting the law.  What the right wing pundits really mean when they say that a judge is a "judicial activist" or is "legislating from the bench" is that the judge made a decision or interpretation that they don't like.  So, if any given judge makes a decision on a law that a right wing pundit does not like, they call that judge a judicial activist and automatically that label is enough to dismiss that judge as a kook. 

So, we are not really dealing with "judicial activism" or "legislating from the bench" at all, but rather, we are back to the question I raised in my previous post: how do we interpret the constitution.  Should one look for original intent, or should the document be viewed as a living, breathing document in need of constant reinterpretation, or anywhere in between these extremes.

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