Judicial 'Activism' Isn't The Issue

by Jeff Rowes - June 6th, 2009 - Wall Street Journal

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.

The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.

It is comforting to see others who are as afraid of judicial conservatives as I. It has long been my contention, starting even before the creation of this blog, that liberals were not the only threat to freedom. It is our entire court system that is corrupt, not just one side of the political spectrum. One of the first steps to fixing a problem is to find a term to refer to the problem. I have seen 'judicial deference' used in other contexts, so I am a little leery of using it to refer just to 'judicial deference' to the legislature, but that specific threat is certainly a huge threat to liberty.

How could Kelo have become the standard of our nation? How frightening is it that where the America people see clearly a threat to freedom, the arrogant judges on both left and right see only a 'technical issue' about the degree of government domination of our lives, leaning towards greater domination as the right answer?

'Judicial deference' to the legislature is the major reason I do not trust the horrible consequences of the Chrysler and GM bankruptcies to our Supreme Court. I will be astonished if we see a ruling that protects our liberties.