Heller's Robert Levy on Whether the Decision Was Untoward "Judicial Activism"

Brian Doherty | October 21, 2008

Quick addendum to Damon Root's post below about conservative legal thinkers disturbed by undue "activism" in the Second Amendment-upholding Heller decision: the case's linchpin lawyer Robert Levy in the New Republic defends the decision in terms conservative judges ought to appreciate. An excerpt:

Reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, many conservatives insist that courts must indiscriminately defer to the decisions of the executive and legislative branch. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of such judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, through a cramped interpretation of the Constitution, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Look for my forthcoming book on the Heller case, Gun Control on Trial, and an excerpt from it in the December reason.

Comments

|10.21.08 @ 6:25PM|#

In practice, judicial restraint has mutated into judicial passivism

That's a key point - the frequent conservative reasoning on the subject strikes me as similar to the 'establishment' view of the Commerce Clause. If the Founders had intended the system to function that way, wouldn't they have just come out and said so?

Of course, if the election plays out as expected, I predict conservatives will immediately rediscover the joys of checks and balances, the proper role of the judiciary in checking abuses by the legislature and executive, etc.

|10.21.08 @ 6:38PM|#

Because it would not have passed theen?

|10.21.08 @ 6:43PM|#

...many conservatives insist that courts must indiscriminately defer to the decisions of the executive and legislative branch.

So then, why do we have these highly paid cocksuckers? If they are going to let the exective do whatever the fuck they want (and they do), why do we even need this branch?
If the Federal Courts ever had the courage (and they don't) to enforce Article One, Section III, this world would be a better place.

Of course, if the election plays out as expected, I predict conservatives will immediately rediscover the joys of checks and balances, the proper role of the judiciary in checking abuses by the legislature and executive, etc.

I don't foresee the federal Courts having any kind of intellectual, much less moral, courage to reign in the executive or the legislative. They will be able to find some douchebag precedent that says what that want to say, blindly apply the philosophically vapid
concept of stari decisis, and get whatever result they want.

TallDave|10.21.08 @ 7:21PM|#

I would call this de-activism: removing activist law that violates the Constitution.

Even as someone who supports Roe, it's clearly activist law -- and made more odd by other rulings. It's very difficult to reconcile the positions that we can abort unborn children but we can't smoke a joint in our own home.

One might almost get the impression laws are being made on the basis of what's popular, with no thought to principle.

|10.21.08 @ 7:38PM|#

Actually, the courts are, and have been, quite activist in the development, enforcement and expansion of a judicial philosophy that regards the bill of rights as the bill of admonitions. Students of constitutional jurisprudence know that the courts accord much greater weight to the will of the legislature than the commands of the framers. The courts long ago declared that all legislation is presumed constitutional and that those who would seek to invalidate a statute must overcome a very heavy, nigh impossible, burden that the courts have conceived in furtherance of what Attorney Levy refers to as "judicial restraint".

|10.21.08 @ 7:44PM|#

Ultimately, all of these threads degenerate into an argument over the definition of judicial activism, so...this is what Dictionary.com has:

judicial activism

noun
an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court) [syn: broad interpretation]

|10.21.08 @ 7:45PM|#

judicial restraint

A view, associated with Felix Frankfurter among others, that judges should be reluctant to declare legislative enactments unconstitutional unless the conflict between the enactment and the Constitution is obvious. The doctrine is akin to, but not identical with, narrow construction, and it is the opposite of judicial activism.

|10.21.08 @ 7:53PM|#

The courts are fond of pronouncing that "it is not for us to question the wisdom of the legislature." The courts are also fond of saying, in reference to the decisions of regulators, regulatory bodies, adminstrative tribunals and the like, "the commisioner is, of course, entitled to great deference as to his findings of fact and his interpretations of the statute and its regulations."

OTOH, the courts have long subjected the exercise of individual rights to bolzhevik "balancing tests" designed by socialist judges for the benefit of state power.

DannyK|10.21.08 @ 10:37PM|#

I'm not lawyer, but it has long seemed to me that judges do whatever the hell they like, and find plausible explanations for it at their convenience.

|10.22.08 @ 11:02AM|#

I actually think joe and libertymike are in basic agreement.

joe: judges should be reluctant to declare legislative enactments unconstitutional unless the conflict between the enactment and the Constitution is obvious

libertymike: The courts long ago declared that all legislation is presumed constitutional and that those who would seek to invalidate a statute must overcome a very heavy, nigh impossible, burden.

In practice, both are accurate descriptions of the extreme reluctance of the courts to strike down legislation.