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What is Judicial Activism?

Sean Evans, Chair and Associate Professor of Political Science
Apr 16, 2012

Last week, President Obama expressed his belief that his health care law is constitutional and said a Supreme Court decision to overturn the law would be “an unprecedented and extraordinary act” of judicial activism.

Judicial activism is not simply striking down laws a legislature passes — because the courts, as a co-equal branch of government, share in lawmaking, regularly void laws as unconstitutional and give laws new meaning through their interpretation. The problem, as Justice Felix Frabkfurter, a proponent of judicial restraint, once wrote is "not whether judges make law, but when and how and how much." These questions raise concerns about the democratic legitimacy of unelected judges overturning the will of the people's elected representatives. interpretation.   

How do we resolve this dilemma? On one side is originalism, which says that judges should remain faithful to the “original meaning” of the governing principles of the framers of the Constitution and amendments as expressed in the text of the Constitution.

Regarding health care, originalism would require judges to identify the framers’ general principles underlying the Constitution and the commerce clause rather than subjectively determine how the framers would view health care reform. Since the framers created the Constitution to limit the power of government, several justices frequently asked about the limits of Congress’ commerce power. The government responded by basically arguing that Congress is the ultimate authority of how much power they have. For originalists, this view eliminates the inherent checks and balances of government.

On the other side are “living Constitutionalists” who are willing to go beyond the text and historical context of the Constitution to articulate broader principles of constitutional politics. Consequently, judges would look at history to see how government works in practice, use social science data to determine the fairness of a policy, examine natural rights to claim that there are some rights individuals enjoy that government cannot remove, or use moral and political philosophy to give constitutional provisions a modern meaning.

Using this approach, several justices talked about how commerce today is radically different from commerce in 1789, how Congress is better equipped to define what is commerce, how the individual mandate is an attempt to overcome the free-rider problem in health care, and how striking down health care reform would take away health care from millions, which would be morally wrong.

“Living Constitutionalists” critique originalists for putting government in a straitjacket by ignoring the practical realities of politics and modern society and claiming that originalism is a political ideology masquerading as legal philosophy. Originalists respond that all judges make basic constitutional choices but deferring to the framers and their understanding is more legitimate than the Court acting as a mini-constitutional convention updating the Constitution when convenient. Amending the Constitution, originalists argue, is the job of legislatures and not courts.

Properly understood then, judicial activism is replacing the ultimate will of the people, as expressed in the Constitution, with the political judgment of judges. As the individual mandate is a novel attempt to require citizens to purchase something, striking down the individual mandate would not be “judicial activism” because the Constitution rejects claims of unlimited Congressional power.

A revised version of this appeared in the April 13th edition of The Jackson Sun