September 28, 2006
Who’s a Judicial Activist? Posted by Joshua Zeitz at 11:45 AM EST In our exchange on judicial activism, John Steele Gordon agreed with me that liberals and conservatives alike tend to write off as “judicial activism” perfectly reasonable legal theories and applications of legal theory with which they disagree. He also seems to concur that there are, in fact, plenty of liberal and conservative judicial activists to go around.
But Mr. Gordon disagrees with my argument that the federal courts from the 1870s through the 1930s (and quite possibly, the 1950s) practiced conservative judicial activism when they narrowly construed the Fourteenth Amendment. “I’m not sure that the narrow interpretation of the Fourteenth Amendment by the Supreme Court until recent times is an example of conservative judicial activism,” he writes. “It is more a case of judicial inactivism. ‘Judicial activism,’ it seems to me, must be about expanding power, either of the court vis-à-vis the other two branches, or of the government in ways that no one previously thought the government possessed.”
This argument strikes me as a little too semantic. When President Richard Nixon impounded federal funds that Congress had authorized and appropriated for environmental protection, his actions were correctly understood as activist. Yes, he was choosing not to spend money. But willfully ignoring appropriations that had been legally mandated was an affirmative action. When President Andrew Johnson doggedly refused to enforce or abide by laws that were passed over his veto—notably, the Freedmen’s Bureau Bill and the Civil Rights Act of 1866—he was affirmatively interfering with the proper functioning of the federal government.
Likewise when the federal courts willfully ignored the constitutional mandate to hold states to the provisions of the Bill of Rights, and when those courts developed a novel interpretation of the Fourteenth Amendment’s phrase “persons” to include corporations (which the courts protected against labor organizers by creatively construing a right to free contract for these same corporations), the Courts were acting affirmatively and in an activist fashion.
If I refused to pay my federal income taxes because I claimed to believe that graduated income taxes are unconstitutional, the government would not consider me negligent; it would consider me a tax dodger, and justly so. Inaction can be an activist tool, especially when Presidents, courts, or citizens take it upon themselves to circumvent the long-established procedures by which we govern ourselves.
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