Constitutional Law

Balkin on Judicial "Activism"

In an interesting (and lengthy) think piece, Jack Balkin explores "judicial restraint in a system of judicial review." Here's a snippet:

If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law. If you think that the Constitution does not prohibit X, then the call for judicial restraint also makes perfect sense because it's also an argument for enforcing the law properly. However, if you say that you think X violates the Constitution but you don't think judges should strike it down or enjoin it, then you are saying you are willing to let certain violations go unremedied in law. This sits uneasily with rule of law notions about what judges are supposed to do.

He identifies several ideologies behind calls for judicial restraint:

• [A]rguments for "more judicial restraint" are often thinly disguised forms of arguments about what the Constitution substantively protects or does not protect.
• [Y]ou have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action. As noted previously, this is really an argument against judicial review.
• [Y]ou have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action because you think courts aren't very good at enforcing these particular kinds of rights.
• [Y]ou have strong views about what the Constitution protects, but you think that you should not express them openly or fully in judicial opinions because you might be wrong, and because whether you are right or wrong, your announcement might have certain bad consequences.
• [O]utside of securing basic norms of political competition, the Constitution should not be interpreted to prohibit much of anything at all.

Full post as published by ACS Blog on March 25, 2008 (boomark / email).