The left so often talks about the need for judges to "balance interests" that I am convinced they simply do not understand the differences between the three branches of government. Now, I grant that recently judges have taken on legislative roles, and, through the regulatory bodies, so has the executive, but the fact that various administrations have abused their authority does not invalidate the distinctions. (Oddly, the left cried foul about Bush's "signing statements", which actually are a proper use of executive power. The executive has always had discretion in how the legislature's laws were enforced. Bush simply made explicit what other administrations did implicitly. But more on that later.)

First, the judiciary. As the left does not seem to understand this, the judiciary exists first and foremost to interpret the law. In the criminal realm, it interprets criminal laws drafted by the legislature. In civil law, it interprets the "private law" of contracts. Ideally, that would be 99% of law. However, because activists love to indulge in judicial legislating, they have done all they can to invalidate contracts and dump most civil cases into torts, where the courts get to "balance interests" and act as legislators. Which is not truly consistent with a free people. In fact, even more than stopping "judicial activism", the right should fight to restore contracts and the right to freely contract on matters such as liability. Only a general ignorance of the law has kept this urgent issue from being embraced rather than the less urgent fights for "tort reform" and against "judicial activism". If we had the right to contract, without the courts tearing them up or interpreting them away, 90% of our judicial ills would vanish.

Still, ignoring that, the purpose of courts is to interpret laws. Or, in the case of torts, to apply precedent. Thanks to their fondness for finding new rights, and abrogating existing ones, they have come up with all manner of "balancing tests" to decide when the government can violate rights, or when it can discriminate, and so on. If the court simply recognized absolute rights (yes, absolute), and disallowed all discrimination, as well as removing all the fictional rights it has invented, it could simply enforce the law, and do away with all such absurd "balancing" and "strict scrutiny". But as that would limit the scope of government, I doubt it will ever happen.

Still, if we want a government which is consistent with the constitution, and with a free people, the role of courts is to apply the law. In torts, probate, and a few other legal fringes they may have to balance interests, but, when running properly, 99% of the law is covered either by law or contract, and the court's job is simple. At least if the courts resists the urge to create their own laws, abrogate contracts ad try to create "justice", rather than simply apply the law as it exists.

The legislature exists to create laws. That is their sole role. Even under a minimal government there arise situations which were never anticipated, or the law must be applied to cases which are a poor fit, and so the legislature will always be needed. For example, applying copyright to computer software. This is analogous to old copyright law, but thanks to the lack of a physical representation, as was the case with old books or magazines, the laws needs to change. And that is the role of the legislature, to create laws. It has some other functions, such as ratifying treaties, declaring war, and so on, but by and large the legislature is the branch responsible for creating laws.

Finally, the executive is responsible with enforcing those laws, and deciding how and whether to do so. And, yes, the executive does have the ability and right to decide not to enforce a law. I know it rankled the left when Bush used signing statement to essentially veto laws, but he had that right. (After all, he has the right to veto, why not to refuse to enforce as well?) That is why the executive is elected, like the legislature, and not the judiciary. As the judiciary has the least ability to create law, or was supposed to, they need to be least responsive to public opinion, while the executive and legislative are to be more responsive.

And that is how the government is supposed to work. Legislatures make laws, executives enforce and judges apply. Unfortunately, with the growth of government, the creation of regulatory agencies under the executive, and bureaucracies with enforcement power under the legislature, as well as the birth of judicial activism and the death of contracts, that is no longer true. For example, regulatory agencies have hearings and create regulations, effectively putting all three powers under the executive, the legislature creates agencies with executive powers, passes laws targeting AIG bonuses, effectively judging, and, of course, the judiciary creates new rights, reinterprets laws and otherwise adopts legislative powers.

Looking at it realistically, the only thing we lack is a judicial assumption of executive power, otherwise the lines have been completely destroyed.

However, that does not mean it is a good thing. There was a reason the lines were drawn, and there is a good reason to restore them. But to do so, we must take some preliminary steps. It does not good to say we need to eliminate the legislative powers of executive agencies, but the reason they have those powers is because our oversized state needs them. Until we scale back the government, reduce its powers and scope, such blurring of lines will continue. Strict division of powers is consistent with a small state, but impossible in a large one. So until we reduce the scope of the state, there is no hope of ending the ills of "judicial activism", or any of the other abuses I described. So fighting against "judicial activism" while leaving the state at its present size is a fantasy, but one, sadly, many Republicans seem to think possible.