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12.06.2004

Judicial activism - guilty on all sides

Megan McArdle produced another outstanding article, this one is on judicial activism and the US model of republican government. She is quickly becoming on of my favorite daily reads.

She makes an excellent point right off the bat, "that doesn't mean that judicial activism doesn't exist; it just means that it's a bipartisan vice". Both ends of the political spectrum in this country have judges who have imposed their will via judicial fiat, neglecting the institution which is supposed to set national will into law, the US Congress. However there is a reason that most judicial activism is seen as coming form the Left, it's because of their view on constitutional law.

I am by no means a legal scholar, in fact I know just enough to get myself into trouble ;), but it is fairly obvious that the conservative view of the courts' role in American government is to interpret the law as written, to infer from and not extend the meaning of existing legislation. This leads, predictably, to less conservative judges going outside of the letter of the law. This contrasts greatly with the pervasive liberal view of the courts' role and influence, divine the spirit of the law and rule from there, regardless of the letter of it. This is the source of liberal judicial activism, base your rulings on what the law "means", not what it "says".

This type of activism has slowly eroded federalism in our government, or as Justice Scalia put it in the context of Lawrence v. Texas, the constitution nowhere empowers the federal government to decide what we may, or may not do in bed, nor to prevent the states from deciding. That is the key to our system of republican government; the federal government's role is strictly defined by the Constitution and anything else belongs to the states.

What is funny is that the liberals in the blue states should really like that, they could have all the government health care and high taxes they want, in their own states.

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