Many "conservatives", such as Lino Graglia, are now taking the position that "judicial activism" (see http://en.wikipedia.org/wiki/Judicial_activism, http://www.fed-soc.org/Publications/hottopics/august.htm and http://www.constitution.org/lrev/kmiec/judicial_activism.htm ) is a
court overturning an act of a legislative branch. In other words, not deferring to the legislative (and presumably also the executive branch), but following the doctrine of "presumption of constitutionality". Lino made that point in an op-ed Sunday ( http://www.constitution.org/col/np/aas/050710_gra-lev.htm ), and in comments to the Austin Federalist Society meeting June 16 (televised and archived at http://groups.yahoo.com/group/LibertyProspects/links/Liberty_InterNet_Rad_001029099481/
). On the other hand, Randy Barnett, at a recent session of the Heritage Foundation ( http://www.heritage.org ) in Washington, DC, took the opposite position, that it is the presumption of constitutionality that is the problem, implying that courts should be overturning more acts of the other two branches. This seems to define the divide between "conservatives" and "libertarians" on this question.
Lino's argument, like that of Scalia and some other "conservatives", seems to be that it is improper to pass the entire burden of complying with constitutions (both U.S. and state) onto courts, and leave it with legislatures and the political process where it belongs. The position seems to be that it is unhealthy to relieve people of their responsibility to enforce constitutions politically, and it is better to let the people suffer from the effects of unconstitutional legislation to induce them to exercise their responsibility.
While this prudential argument has some merit, my constitutionalist position is that the oath that judges and other officials take, and which is also a duty of civilians even without taking the oath, is to enforce the Constitution in any situation in which one becomes involved, even if that means accepting the burden that has been avoided by others. The problem of the judiciary is not that they deny support to the other branches in making decisions, but that the other branches are derelict.
Contrary to Lino's position, it is not "making law" to refuse to cooperate with the actions of the other branches when those actions are unconstitutional. Lawmaking is directing the actions of officials to apply coercive means and expend public resources in doing so. It is not "lawmaking" to block such positive action, only to order that coercive action be taken and public resources expended in doing so.
It is my general finding that in almost every case in which a court has found an official act to be unconstitutional, the court has been right. Although I do not like the term "judicial activism", if I were to define it consistent with originalism, it would be to sustain official acts when their constitutionality is in doubt. If there is any doubt, the decision should be that the act is unconstitutional. The logic of the Constitution is the presumption of nonauthority, and the burden must always be on officials to prove their authority, and to refrain from any action if their authority for it is challenged, until that authority is proved. That is the essential meaning of the Ninth Amendment.
That is why I call for a voting rule for multi-judge panels that the panel must be unanimous to sustain the constitutionality of any official act.
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