The right kind of "activism"
Author: Timothy Sandefur
Reason’s David Harsanyi has an excellent article here on liberal accusations of “judicial activism” in the health care cases:
When U.S. District Judge Roger Vinson ruled this week that Obamacare was unconstitutional—due to its individual mandate—the White House's first reaction was to call the ruling “out of the mainstream,” as if it were remotely true or that it even mattered.
The decision, you may not be surprised to hear, is also a case of “judicial activism” and an “overreach.”
Co-opting conservative terms like “judicial activism” is a cute way of trying to turn the tables on those who have some reverence for the original intent of the Founders.
The true activist invents new ways to expand power and set precedents allowing his or her ideological views to be embedded in the “Constitution” forever. An activist searches for ways to rationalize intrusions, not to limit them—unless the breach involves terrorism suspects and the guy holed up in the White House is a Bush.
Vinson may be overruled, but his decision is cogent and persuasive and doesn’t seek out excuses for abuse. His ruling asks for the kind of government restraint that judges rarely have the appetite to call for, even though, need I remind you, “judicial activism” in the defense of liberty is no vice.
For more on what the term “judicial activism” actually means, check out my article, “The Wolves And The Sheep of Constitutional Law.”