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Activity v. Activism


The Supreme Court’s Heller ruling upholding the Second Amendment’s individual right to bear arms has created uproar among liberals. But rather than addressing Justice Scalia’s powerful logical and historical analysis of the amendment, they have attacked it as judicial activism.

However, the central issue is not judicial activism. It is not whether the court should be active, but which principles will inform its activity. In fact, activism that constrains government power in deference to constitutional protections mirrors our founders’ views.

This is clear from Federalist 78, America’s most famous statement of the intended role of our judiciary:

[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.


[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter … to guard the Constitution and the rights of individuals …


Federalist 78 asserts that judges are not to invalidate laws consistent with the Constitution, but since every law is not constitutional just because it was passed, courts are to actively strike down what is inconsistent with the Constitution. It defines the court’s proper role as neither an active subverter of those rights nor a passive accomplice in subversions by others in government, but as an active guardian of the Constitutional rights of citizens, enforcing its limitations on government power over them.

Why have liberals skirted the real issue to focus on allegations of court activism? Because a court that takes seriously the Constitution as the highest law of the land is necessarily at odds with those who insist the Constitution is a ‘living document.’ If the meaning of the Constitution can easily be altered by judicial interpretations, then it cannot be the highest law of the land in practice. But because such ‘living document’ rulings have been attacked as judicial activism, using the same language to attack Heller confuses issues and paints defending the Constitution as unprincipled.

A court actively defending the Constitution threatens precedents that liberal courts have used to create new rights out of thin air (or from ‘emanations from penumbras’ around stated rights) or have done serious violence to the meaning of the Constitution through reinterpreting what its words mean — words like ‘taking’ in the 5th Amendment, ‘commerce’ in Article 1, and even ‘no’ and ‘not’ in the Bill of Rights. But they are determined to defend those precedents, which have effectively changed the Constitution, while bypassing the process established to change it legitimately.

In fact, the approach in Heller threatens the pattern of Supreme Court activity since the 1930s. Liberal courts create new rights, expanding government powers or eroding freedoms from government control. But to prevent those Constitutional deviations from being overturned, they then insist that conservative courts must leave them in place and build upon them, out of deference to those ‘new and improved’ precedents. The result has been the ongoing erosion of Americans’ rights.

Of course, if the Supreme Court must defer to earlier precedents, there is no respectable argument for the creative interpretations (such as from the New Deal and Warren courts) liberals are now so desperate to defend, since they clearly deviated from Constitutional precedent.

Rulings such as Heller do not ignore precedents, as ‘activism’ allegations portray. Instead, they are faithful to the Constitution and the limited authority it delegated to government as the controlling precedent. But that requires overturning laws and interpretations inconsistent with the Constitution, to reinstate the rights and protections they have undermined. If such activism is to be rejected, much of the Constitution is already a dead letter, and it has become what James Madison called a mere ‘parchment barrier’ that fails to protect our rights in fact.

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