On Activist Judges

The prescient comment by Judge Jones in the recent ruling in the Dover Panda Trial that "[t]hose who disagree with our holding will likely mark it as the product of an activist judge" was born out almost immediately by the Discovery Institute. In fact, it often seems that those who seek to use government to impose their will on others are the loudest complainers about so-called Judicial Activism. Timothy Sandefur has penned an excellent piece on the topic of "Judicial Activism" over on positive liberty. One of his points is that the purpose of the Constitution is not to impose a tyranny of the majority.

The Constitution does not exist to empower legislative majorities -- it exists to limit the power of legislative majorities. After all, legislative majorities don't really need anyone to give them power: they have plenty already, because they're the majority! It's the minority that needs protection of some sort.

I'd go further. In my opinion, it is the purpose of the Constitution to enumerate the powers ceded to all levels and branches of government by the people. Many of the complainers about "judicial activism" also object to what are called penumbra rights; that is rights which are not explicitly in the Constitution, but which are implied by the enumerated rights. Additionally, the current administration, whose supporters are among those who object to judicial activism and penumbra rights, seems to have no problem with penumbra executive powers. The problem with the collective view that individuals only have enumerated and limitted rights and government can have broad and unenumerated powers is that it turns the Constitution on its head. The Constitution is an enumeration of powers ceded by the people to government and it is explicitly not an enumeration of individual rights. 9th Amendment speaks directly to this last point.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Individual rights are independent of the U.S. Constitution. Government powers are not. Unless a power is explicitly granted to a governmental authority by the U.S. Constitution, it has no authority to trespass on any individual right.