Posted by: anniewilson | January 13, 2009

Judicial Activism as it relates to Libertarianism

The appointment of a judge is a heavy burden for any thoughtful person. To think otherwise is to turn a blind eye to the intricacy’s of politics and governance. In the United States, a judge potentially holds more power than most elected officials.

The specific function of the judiciary branch of government, interpretation of the law, changed drastically in 1873 with the Slaughterhouse Cases. “John A. Campbell, representing the Butchers’ Benevolent Association, argued that the amendment’s Privileges or Immunities Clause secured the right of butchers to pursue their calling without unreasonable interference from the state. Writing for the 7-2 majority, Justice Samuel F. Miller disagreed, holding that “the one pervading purpose” of the clause was to protect the rights of former slaves, not to expand the rights of white butchers.”(1) Of course he was right.

But, in a dissenting opinion, “Justice Stephen J. Field took a far wider view. The phrase “privileges or immunities,” he argued, describes those “natural and inalienable rights” that “belong to the citizens of all free governments.” (2) And, “Field’s reading of the due process clause of the amendment would prevail in future cases in which the court read the amendment broadly to protect property interests against hostile state laws.”(1)

Thus began judicial activism.

Of course, “The defining characteristic of libertarian legal theory is its insistence that the primary or only legitimate function of law is the preservation of individual liberty.” (3) In a nutshell, libertarianism is the “right of all to pursue happiness, free from arbitrary interference, and government dedicated to securing that right.” (4) Beyond that, libertarianism hands very little, if any, power over to government at any level. Therefore, “Perhaps nowhere is the congruence between libertarian principles and American values clearer than in the domain of judicial philosophy. Americans don’t want judges running their lives. But they do want them checking overweening, unconstitutional government.” (4)

Some have noted that the Founding Fathers specifically designed our system of Checks and Balances thinking “that the various branches-Executive, Judicial, and Legislative-will be jealous of their own powers – that, to the extent it can, the Legislative branch would never let the Judicial branch take to itself authority that ought to have been its own. The Constitutional founders never foresaw that parties in the legislatures would collude with political parties within the judicial branch to circumvent the need to pass laws.”(5)

But considering that in the US Supreme Court alone, “…the liberals voted together an amazing 95% of the time…”(6) it would not be unreasonable to ask, “Are the liberals steadier or are they trapped in group-think?” (6) On the other hand you have, “Conservatives, outraged at judicial lawmaking, demand(ing) “judicial restraint,” thus marginalizing the courts.” (4) Perhaps we needed, “neither activism nor restraint, but courts responsible to the Constitution.” (4)

Of course, it took a court to come up with a right to privacy. The Constitution never contained any such notion. That idea came originated in “Griswold vs. Connecticut (1965), which struck down state laws against condoms to protect the “right to marital privacy.” The judges were searching high and low to find something in the Constitution on which to base a right of sexual privacy. Justice William O. Douglas claimed to find “penumbras” and “emanations” from rights in the Constitution that extended to a right to privacy.” (6)

So, is judicial activism a bad thing? It might be too early in this exercise in Democracy to tell. But one thing is for sure…in this country, judges have the power to make changes that can last for generations after they’ve left the bench. At the very next opportunity, the president should “Nominate more libertarian-conservative judges like Clarence Thomas to the courts who care about protecting individual liberty, not just traditionalist-conservative judges like Robert Bork who care most about the “liberty” of the majority to enshrine its preferences into law.” (4)

How do you choose a judge? It can be difficult as Reagan learned when he nominated Sandra Day O’Connor “because he wanted to be the first to nominate a woman for the court. He assumed she was OK because she was an insider in the Republican circles of Barry Goldwater’s Arizona. However, the lady had no paper trail to provide a clue about her judicial philosophy. Sure enough, she had no philosophy whatever…” (6) Of course, should a nominee have an opinion on anything, especially abortion, there is something for legislators to argue with so it would stand to reason that the weakest of nominees have a much better chance to win a seat on the highest court in the land. That doesn’t bode well for our country.

Thomas once famously wrote that “A good argument diluted to avoid criticism is not nearly as good as the undiluted argument, because we best arrive at truth through a process of honest and vigorous debate. Arguments should not sneak around in disguise, as if dissent were somehow sinister…For it is bravery that is required to secure freedom.”(7) It is such bravery that we should seek in our judges.









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