When you mention judicial activism, people immediately think of some left-right divide, and equate the question with wings of the political spectrum. The assumption is that judicial activism is a left-wing agenda and that the right opposes judicial activism for the sole reason that it would push the country to the left.

I would like to be the first to say otherwise.

I denounce judicial activism on either side. Were there a national agenda to reverse Roe v Wade to make abortion illegal nationwide, I would oppose it as stridently as I oppose the current law. Questions of criminal law are constitutionally state questions, so, no matter which side is winning, I oppose any federal intervention int he question. Likewise, I oppose the use federal charges to circumvent weak state criminal justice systems. (eg. Virginia's "project exile" and Maryland's inconsistent attempts to emulate it, using federal handgun charges to get around weak sentences in state courts and lenient parole boards after sentencing.) There are a few places in the Constitution where the state is granted powers with which I disagree, or provisions which I think are wrong (eg. the decision to treat with Indian nations as sovereign nations within our borders), but I would argue that even when the courts rule in a way I like, if they change the meaning of the Constitution they are wrong.

Of course, under present conditions, most judicial activism is toward the left, out of simple necessity. The Constitution was intended first as a federalist document, limiting the central authority and reserving most powers to the states, and secondly as a largely libertarian document, at least in terms of federal actions, leaving it to the states to define the limits of individual liberty. As the courts until the Civil War largely respected both of those premises, precedents are largely libertarian and federalist. Even after the Civil War, the courts by and large used the 14th Amendment sparingly, and until the mid to late 1930's they were still governed by precedent. It was only since FDR's threat to pack the courts, that the courts began to adjudicate away federalism. And it is only since activist attorneys attained seats on the federal bench in the 1950's and 1960's that real judicial activism began to destroy the libertarian elements. However, as I said, since the Constitution itself is largely libertarian, any activism would, of necessity, be to the left*. Those on the right already have what they want from the Constitution itself.

But I did start this piece by saying my opposition to judicial activism is not partisan. That I would oppose conservative activism in those areas where such is possible. Now, I am sure some are saying "Sure, easy to say that now, but what if a liberal amendment passed?"

But it has. I am an ardent federalist, and to my mind the 14th and 17th amendments are travesties. Yet, I would argue that a court which ruled in such a way to alter their plain meaning would be wrong. Though I think the 14th Amendment is excessively broad and was far too extensive in scope for the intended purpose, I would, so long as it remains the law of the land, demand courts abide by its clear meaning.

Why do I say this?

Because, as I have argued before, the best predictor of success of any government is a stable, predictable environment. A government of laws not men, as the saying goes. Though a recent report tries to focus on taxes, regulations, and so on, I would argue that all of those are tolerable so long as the law is predictable**. It is unpredictability which makes it impossible to do anything.

Let me put it this way. Imagine you are going to open a factory. There are two nations. One is ruled by a corrupt bureaucracy, but a friendly one. They promise you they will let you do as you wish for some small kickbacks. Another state is a rigid, authoritarian, heavily taxed state. But they have a long history of stability, and a judiciary which is quite precise int heir application of rules.

At first, the 40% taxes of the oppressive, but consistent state, sound bad, but then you think a bit. The other state had previously promised a railroad the same deal, yet nationalized the track a year later. And after inviting in brewers had declared prohibition. The small kickbacks may sound appealing, but the inconsistency means your investment may suddenly vanish. Even if the 40% tax is crushing, at least the consistent laws allow you to plan for tomorrow and predict what will happen.

And that is the problem with judicial activism, on the left or right. Whoever the court favors at the moment thinks they have won, but in reality, everyone loses with activist judges. The judge who rules your way today may rule the other tomorrow. So long as neither written law nor precedent is binding, you cannot count on anything, the law you know today may be gone in the blink of an eye, or the tap of a gavel. Judicial activism destroys any predictability, and without predictability, human action is impossible.

So, as I said, whether the right wins or the left, I cannot abide activist judges. Even were the Constitution a much more left leaning document I would say the same. It is not so much a right-left issue, as one common to all men, or at least it should be. Whatever our political beliefs, I would hope we all would agree that a consistent set of laws is something we all should desire.

---------------------------------------------------------------------------

* Though it has not occurred in practice, there could be right wing judicial activism. The scope for such activism is much smaller than similar activism on the left, but I can think of a few possibilities. As I mentioned earlier, a law outlawing abortion nationwide would be one example. Or, court rulings prohibiting states from interfering with business or the right to contract. As I said elsewhere, much as I believe in laissez-faire, business regulation within a state is still a state question, so I would leave it to the states to decide how much or little to interfere in the affairs of business. My only argument is that there is no justification for the federal government to do so. (Outside of ensuring the smooth flow of interstate trade.) I would hope the states would refrain from intruding into private economic matters, but within the limits of their state constitutions, they do have the right to meddle if they wish.

** Obviously, ideally we would have predictable, consistent laws, low taxes and few regulations, but my point is, given the choice, I would rather have bad taxes and regulation with consistent laws than low taxes and few regulations but arbitrary enforcement of the laws which do exist. Consistency, in other words, is even more important than low taxes or limited government. A consistent application of law is the bare minimum for meaningful activity.