|Charges of “activism” have essentially
become a smear intended to discredit any decision with which
one disagrees. More damaging, however, the use of this label,
on all sides, fosters a serious confusion about the role of the
The charge of “judicial activism” typically condemns
proper activity on the part of judges along with improper activity.
It has become dangerously commonplace to equate a judge’s
support for overturning a law with pernicious activism. Prevailing
wisdom holds that we can identify “activists” simply
by counting up the number of times a judge rules against existing
laws or government practices. Notice that by that logic, the
only way for a judge to avoid overstepping his authority is to
engage in no activity—to simply rubberstamp whatever the
legislature and other agencies of government serve up. What,
by this reasoning, is the point of having a Supreme Court?
Some laws should be struck down. Because the United States is
a constitutional republic, we are all bound—private citizens
and government alike—to abide by the Constitution. It is
precisely the role of the judiciary to strike down laws and prohibit
government actions that fail to do so. Judges who so rule are
acting responsibly and fulfilling their function.
Laws are necessarily written in broad terms, designed to govern
an array of cases that are similar in principle but different
in particulars. Judicial rulings are needed when the proper application
of those laws, in a specific case, is not transparent. The logical
application of a Constitutional provision to novel circumstances
is not, therefore, a case of creating new rules ex nihilo. Rather,
it is exactly what we need judges to often do.
While Article I, for instance, provides for the common defense
and the specific maintenance of an army and navy, courts have
not been activist dictators by also allowing an air force. While
the First Amendment protects freedom of “speech” and
of “the press,” courts have not brazenly “legislated” by
treating written letters as also protected.
In doing their job, judges must be mindful of the Ninth Amendment.
The Constitution does not provide an exhaustive catalog of every
right that citizens possess. The Ninth Amendment explicitly instructs
us that those rights not named in the Constitution are retained
by the people. It is thereby laying down a principle to guide
constitutional interpretation. Accordingly, judges must apply
the law in a way that respects all the rights of the citizens,
unenumerated as well as enumerated. It is no more legitimate
to subtract from the Constitution, by ignoring this provision,
than to arbitrarily add to it.
The salient question in assessing any nominee, then, is not whether
a judge takes action, but the factors that guide his actions.
To be qualified to sit on the Supreme Court, a person must, at
minimum, understand three basic facts: First, that individual
rights are broad principles defining the individual’s freedom
of action. The familiar rights of life, liberty, property, and
the pursuit of happiness subsume a vast array of particular exercises
of this freedom, some explicitly named in the constitution (e.g.,
the freedom of speech) and some not (the right to travel).
Second, a justice must understand that the government’s
sole function is to protect individuals’ freedom of action.
As Jefferson explained, it is “to secure these rights,
[that] governments are instituted among men.”
Third, a justice must recognize that our government properly
acts exclusively by permission. Articles I, II, and III specify
the powers of the three branches of government, and the 10th
Amendment expressly decrees that powers not delegated to the
federal government are reserved by the states or by the people.
The government, in other words, may do only what it is legally
authorized to do.
These, correspondingly, are the considerations that should guide
a judge’s decision making. It is precisely because action
from judges is often needed that principled action—action
premised on the basic principles of our republic—is essential.
Only a nominee whose record demonstrates that he is so guided
is fit to be entrusted a place on the Court.
Tara Smith, associate professor of philosophy at the University
of Texas at Austin, is a contributing writer for the Ayn Rand
Institute in Irvine, CA. The Institute promotes the ideas of
the HPU Student Newspaper. All rights reserved.
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