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Friday, June 24, 2005

Judicial activism: wrong and right

"Liberalism triumphed yesterday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government. Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint" and deference to — it sometimes seems — almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary's indispensable role in limiting government." — George F. Will, today. Right on, GFW. Let's be very clear about what happened yesterday. By the familiar 5-4 majority, the Supreme Court decided in Kelo et al. v. City of New London that American citizens own property at the whim of the government. Local governments can force property owners to sell out and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted. Conservatives who reflexively condemn "judicial activism" should understand that there are different kinds of activist courts, with different kinds of aims. If America is a still a constitutional republic, then there's got to be a place for the sort of judicial activism that not only acts in behalf of individual property rights as fundamental, but also acts to undo decisions that effectively negate those rights. Yesterday's property rights nightmare would be a good place to start, when the similar issue makes it to a future (and hopefully more constitutionally grounded) Supreme Court. Janice Rogers Brown got criticized by the left for not being part of "the mainstream," but let's be clear about definitions. Brown is not part of the mainstream established by the cultural left's social and cultural agenda, but neither would James Madison be if he were alive today. If Brown chooses to become a judicial activist in behalf of seeking to restore constitutional legitimacy, more power to her. What I am saying — what I am advocating — is that justices who believe the Constitution means what it plainly says, are more than justified in overturning precedent when it means restoring constitutionally based, limited governance. Even if doing so bears passing resemblance to "legislating from the bench." Even if so doing puts them outside today's "mainstream." Madison's mainstream is the one to aim for.