Sometimes I find answers in strange places.

While reading various things on the web, I came across the site of the Netzari, a messianic Jewish movement. They resemble many other Jewish messianic groups, admitting Jesus as messiah while also continuing to obey Mosaic law. What distinguishes them from other groups in my eyes is the fact that they deny the validity of the Oral Law, that is the body of rabbinical opinion and interpretation of the Torah. In this way, rather than orthodox Jews, they more resemble the Karaites, a small Jewish sect that denies the Oral Law and argues that the Torah is primary*.

So, what does this have to do with politics? Bear with me, I will get there soon.

The problem for both the Karaites and the Netzari is that the Oral Law exists for a reason. The Torah may be divine law, but it is not complete, or rather, it may be complete, but it still requires interpretation. For example, while the Torah says that Jews must do no work on the Sabbath, there is no definition of what constitutes work. So, if, like the Karaites or Netzari, you reject the Oral Law and traditional rabbinical opinion, you have to substitute a new opinion. So, while claiming you obey only the Torah, you end up simply substituting some other rabbinical opinion for the traditional one.

Which brings me to my point, the difference between interpretation and activism. You see, whenever conservatives bring up liberal judicial activism, the liberals counter by denouncing what they call "conservative judicial activism", and pretend that interpretation is just a variation of activism, and create the false dichotomy of either no interpretation at all, or of competing activism based on ideology. And that is where my example comes in.

As I stated above, there is simply no way to live without interpretation. Even had the Constitution been written to be comprehensive at the time of its creation, as the world changes and situations arise which were never even imagined, there will arise the need for interpretation. For example, how to apply copyright to digital representations of books? That is a question that could not have been covered in the original Constitution, as it was not even imagined at the time. However, there are issues specific to electronic reproduction and transmission which make it different from dealing with a physical document. (Eg. the ability of countless users to make copies at no cost, the ability of many users to simultaneously make use of a single copy, etc.)

In short, we simply cannot live without interpretation.The law will never be drafted which is so comprehensive that it will never need to be interpreted in light of a novel situation.

And that means that if we accept the liberal idea that interpretation is the same as activism, we are left with no choice but to accept competing liberal and conservative activism, and we cannot complain about liberal activism, as we would do the same if we were in power.

However, that is not true. There is a clear distinction between interpretation and activism. The left may not want to recognize it, as they are well served by blurring the distinction between the two, but the difference is there, and easily defined.

Interpretation is simply taking a situation in which the law is not clear and defining how the law applies given the current situation. Activism, on the other hand, is taking a situation which is covered adequately by existing law, and changing the meaning of existing law to apply in a way it previously did not.

Let us look at two examples to see the difference.

Actually, make that three. First, I want to start with an example the left claims is "conservative judicial activism", which is actually neither interpretation nor activism, but simply application of well understood and well defined law. That si the supreme court decision which ended the presidential election of 2000. While the left claims this was a case of the Supreme Court inventing new law, the fact is that the Constitution says that the states must appoint electors as the legislature determines, the Florida legislature had clearly established procedures, and the Florida Supreme Court rulings were contrary tot he legislative rulings. As a matter of constitutional law, the legislature rather than the court controlled, and so the Supreme Court rules against the Florida Supreme Court. This was not activism, the creation of new law, nor interpretation, the clarification of law int he face of new circumstances. It was simply an application of well understood law to a set of facts.

So let us look at a case which the left calls "conservative activism" which is in reality interpretation, the Bakke case. In the Bakke case, the court struck down racial quotas in college admissions**, arguing that such discrimination was illegal. The left claims this is "activism", but in reality it is interpretation***. Prior to this case, it was generally assumed that anti-discrimination policies existed solely to protect minorities. However, as there was nothing which defined discrimination as being only possible against minorities, the question fo whether anti-discrimination laws applied to whites was an unanswered question in the law, and deciding it was a matter of interpretation.

Now, let us look at real activism. Roe v. Wade is the best possible example of this. Even the proponents have to resort to finding the right to privacy in the penumbras of the emanations of the Constitution, a clear admission that they are extending the law. But ignoring that admission, the ruling itself makes it clear that the ruling is nothing but activism. The right of marital privacy is an accepted and ancient part of the common law, however, it is no part of the Constitution. The Constitution did not incorporate the common law, nor force any state to abide by common law principles, so having the Supreme Court force a common law principle on every state was a misapplication of the law, and an expansion of the law, a clear sign of activism. Even if we ignore that, the right itself limited only the right of the state to interfere with private decisions about marital matters. So, to extend it to cover third parties providing birth control (as in Griswold) or abortions, and to extend it from married couples to non-married couples to individuals, is clearly not interpretation but an expansion of the principle.

And that, in a nutshell, is the difference between activism and interpretation. Interpretation is necessary, but is very limited in scope. Interpretation occurs only when the current law is unclear about how a situation would be handled, and is limited to resolving how the law will apply in this novel situation. Activism, on the other hand, occurs when the law is already well established, changing how the law views the current situation. In other words, interpretation fills in a blank while activism changes the law.

And that is my response to those on the left who argue about conservative activism. Yes, it is possible for judges to be activist for conservatism as well as liberalism, but what you often call conservative activism is nothing of the kind, but simple interpretation. There is a difference between strict interpretations and activism. And to try to blur that is dishonest. Interpretation is a necessary part of the law, activism is not.

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* To be fair, many, probably most, Karaites recognize the need for interpretation, so this description only applies to a very small minority and some historical groups. However, as this is not an essay on theology, the minority beliefs are used as they provide a better example for my purposes.

** In a puzzling ruling, they did allow race to be considered, but it could not be a quota. So some discrimination is allowed while other discrimination is denied. It makes little sense to anyone but lawyers, but then again, it makes more sense than O'Connor's 25 year rule.

*** Actually, it is generous to even call it interpretation. It is quite arguable that it is just the application of law to facts. But as it was the first case to say whites could be the victims of discrimination, I figured I could make a fair case for interpretation.