Wednesday, June 21, 2006

Activist conservatives?

In a complaint about the ABC John Roskam complains that:
The real culture wars are not ones that can be placed on a pithy bumper sticker. The culture wars are about the values that exist in our education system, our universities, our courts and our public institutions. Increasingly, conservatives are being marginalised in debates on these values. For example, in Victoria, the Bracks Government's proposed charter of rights would allow unelected judges, not the parliament as the representative of the people, to make decisions about our laws. This is a major challenge to our democratic heritage and yet it has hardly been discussed.
I'm not sure who is to blame for this; the ABC has reported the debate on the Charter of Rights. But in the United States (whose conservative movement is Roskam's ideal) it is conservative judges who have been most active in the invalidation of laws passed by Congress. An NY Times article in July 2005 noted:
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent.
How do conservatives justify this? Stephen Pomper citing Thomas Keck's The Most Activist Supreme Court in History explains:
How can conservatives possibly square the Rehnquist Court's activist legacy with their own anti-activist rhetoric? Well, it turns out there's a trick: There are actually two different kinds of activism—conservative and liberal—and conservatives don't count decisions within their own tradition as, well, activism. …As to how conservatives have developed a guilt-free approach to their own brand of activism, the key to understanding this is the doctrine of originalism. The idea behind originalism is that the Court can tear a mighty swathe through acts of Congress without really engaging in activism if it is channeling the original intent of the Framers. This sounds like a wonderfully hoary and straight-shooting concept but Keck shows that it's something short of that. In fact, the seeds of modern orginalism were planted by Justice Black in the 1940s for liberal activist purposes; he was trying to develop a basis for expanding the Court's enforcement of the Bill of Rights against state governments. Black sparred with Felix Frankfurter (a champion of judicial restraint) in an effort to make originalism respectable, but this goal was not fully achieved—at least during Black's tenure. It did not help Black's case that his historical work concerning the incorporation of the Bill of Rights against the states was shot full of holes in the academic press. This helped support the critical impression that originalism is a highly corruptible doctrine prone to what constitutional scholar Alfred H. Kelly has referred to as “law office history”—that is, reverse-engineered speculation about the past generated by bright young law clerks who know what their bosses want to hear. You can argue the merits and demerits of originalism until you are blue in the face, but on the question of whether originalism somehow transforms conservative activism into something else, Keck is very persuasive: The doctrine does not have a privileged claim on interpreting the Constitution, and when the Court invalidates a congressional statute it is in activist mode—even if the Justices are certain that the Framers themselves (whether through the Federalist Papers or by means of Vulcan mindmeld) are commanding them to throw Congress' work on the compost pile.


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