Posted by
Rogue Historian on Tuesday, April 24, 2007 12:07:17 AM
“To be sure, courts deserve criticism when they exercise legislative or executive powers ordering taxes to be raised, assuming control over school systems or prisons, giving regulatory agencies broad lawmaking authority. But better to call this behavior what it really is, not "activism" but lawlessness. By contrast, judicial activism -- defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries -- is essential to protecting individual liberty and the rule of law.”
Clint Bolick’s thesis challenges over a hundred years of wisdom, dating back to Oliver Wendall Holmes, Jr. Holmes and his ideological progeny (most prominently, Felix Frankfurter) started the so-called restrainist school of constitutional jurisprudence. Since then, conservatives have been wed to the notion that the Court should be a good child, seen but not heard. This dangerous notion was furthered by the work of Robert Bork, principally in Slouching Towards Gamorrah. Though Bork has backpedaled or at least refined his position of late, his philosophy of judicial surrender remains a serious impediment to conservatism.
Maybe Bolick is the next Bork. He is, at least, no slouch.
http://www.goldwaterinstitute.org/AboutUs/ArticleView.aspx?id=1534
Note: After posting this initially I went to the link above and watched the CATO institute presentation of Bolick and his detractors, in its entirety. The video is over an hour long, but I found it absolutely fascinating. I intend to review parts of it in a subsequent post. In particular, I would take issue with the accuracy of Bolick's characterization of Madison as the "primary" founder of constitutionalism. He corrects this error somewhat, though without saying as much, when he relies on Hamilton to defend his notion of legitimate activism. There is a point at which the discussion gets bogged down by semantics. "Is Bolick talking about activism or just judicial review?" wonders one of his conservative colleagues. And there are many more points made by the eminent panelist from the left that deserve scrutiny. What unfolds is a fascinating discussion on the current status of the Supreme Court.
Those of you who support G.W., as do I, will bristle at Bolick's characterization of the latter as a government bully. I am not sure what he has in mind here, but it, also, is worth exploring.