Activist Liberty

There's been a concerted effort over the last few years by liberals to define "judicial activism" such that it has no real meaning: it is only defined by your interpretive perspective, or worse, simply by the difference between your own opinion and another.

"Judicial activism" means, to me and most people I run into, to ignore the law and substitute your view of what the law should be. It is to engage in the legislative function, not only in striking down constitutional laws or upholding unconstitutional ones, but in crafting the law to reach particular extra-constitutional outcomes. It has nothing to do with the relationship of one opinion to my own, but the relationship of the case to the law and the purpose of the court to determine not what the law should be, but what it is.

I am going through Justice Stephen Breyer's book Active Liberty. This book is astonishing in that Breyer actually and unabashedly makes the argument for why he sets aside what the Constitution says, in both text and intent, to serve what is to him a greater good. His basic premise is that the purpose of the Constitution is to promote certain ideals, and that rulings of constitutionality should heavily weigh that purpose against what the Constitution actually says.

He really does this. I am not yanking your chain here.

For example, Breyer defends his support of campaign finance reform that restricts the freedom of speech by saying that in doing so, he is supporting the "purpose" of the First Amendment to encourage a national discussion; that by limiting the speech of wealthy people who normally dominate the discussion, he promotes active participation in that discussion by those who might not have the means to purchase such opportunities to speak.

There can be no doubt that Breyer is explicitly pushing for the restriction of political speech, which violates both the letter and the clear intent of the Constitution. He does not really question this; he simply says the restriction is in line with the Constitution's purpose.

He contends that restricting speech in this way is justified because it increases equality of speech for everyone else. Nevermind that such "equality" was not an obvious purpose of the First Amendment or the Constitution. Nevermind that there's no serious reason to believe that equality is enhanced, or discussion encouraged, by these restrictions. He believes that will be the outcome, and so that is how our justice-legislator rules.

The oddest part about Breyer's book is that he actually believes he is following a course of "judicial modesty." He thinks that by refusing to follow the law, by substituting for the law his own enlightened views of how well a case fits in with the purpose of the law in reaching particular outcomes, he is being ... modest. I find it to be precisely the opposite.

Breyer sets aside the text and intent of the Constitution in order to push his vision of its purpose, trying to produce a particular outcome he favors, that he believes is more in line with that purpose.

Call this what you want. I call it judicial activism. I call it ignoring the Constitution. I call it injustice. I call it hatred of the rule of law.

President Obama calls it empathy.