July 05, 2005

Conservative Jurism

Plenty of people preach judicial restraint; conservatives decry 'judicial activism' as a symbolic codeword for all the things they dislike about the modern judiciary. The problem, at least for libertarians, is that the traditional government mantra - restraint, respect for the prerogatives of others, and a hearty reliance on self-crrection - is inappropriate in the judicial setting.

It's a good thing for the government to exercise restraint in dealing with the populace; it's a bad thing for the watchdogs of government behavior to exercising restraint when dealing with abuses of liberty and process. The judiciary has a very large role in the latter and ought not be fearful of its primary task: to stop the government in continued abuses upon our liberties. It would be folly to elevate the court to some mythical level on infallibility, but it endangers our freedoms to force the courts to continually defer to the whims of legislators and bureaucrats.

The courts do not have to defer to the legislatures or even to the voters. They are supposed to be undemocratic, that's their nature. If we wanted the legislatures to run everything then we'd eliminate the Senate, eliminate the Electoral College, reduce the hurdle for constitutional amendments to majrotiy vote of the Congress, abolish the 10th Amendment and federalism and just have a Parliament run everything. We have a complex government set up to divide tasks for a specific and important reason. They are there to check each other and to block excesses or abuses. It's an intentionally confrontational system of government and it's why our system is better than the typical European setup that doesn't even separate the executive and legislative.

Now I don't think the courts have any right to simply make up stuff that isn't in the Constitution or to start writing social policy from the bench. But they ARE supposed to aggressively defend our freedoms, even if other public officials don't.

An excellent article in this month's Reason called Unleash the Judges forcefully makes the point that an engaged libertarian judiciary is nothing to fear. They also rightly point out that it was the progressives and New Dealers that first attacked the court as overly powerful and argued for a very long leash for the states and Congress - on economic matters, instead of social matters. Landmark cases, most notably Lochner v. New York were attacked and overturned as being made up law fit to the policy preferences of Justices. The same criticisms are made today by conservatives.

Overturning the acts of legislatures is precisely what the courts are meant to do. If they were nothing but a rubber stamp on the activities of the executive and legislature then they'd be pointless and we could just fire tham and save on the costs of their salaries. No, the courts have value and are the equal of the other branches. The courts should always be willing to overrule an unconstitutional or illegal act of the legislatures; the popularly representative aspects of government can use the amendment power to make changes.

The separation between conservative, pro-government restraint of the judiciary and libertarian, pro-liberty restraint of the government is what makes the forthcoming SCOTUS nomination all the more important. let's hope that president Bush makes a nomination of somebody willing to use the powers of the judiciary for the liberty of Americans and not to defend the already overindulged prerogatives of arrogant legislatures.

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