There’s nothing activist about saying government must play by the rules.


Recently, bloggers and even the Texas Land Commissioner were decrying several Texas Supreme Court Justices for their “extreme activism” in ruling in favor of property owners in Severance v. Patterson. What was the reason for this outrage? Simple: the Court found that if the state wished to declare that Mrs. Severance’s private property was now a public beach, as defined by the Texas Open Beaches Act, it had to follow the procedures laid out in that statute for doing so. In other words, before the state could take Mrs. Severance’s property, it had to prove its right to do so in court.

Apparently asking the government to play by the rules is too much for some folks. By the end of the day, at least one Texas official and one former legislator were calling  citizens to throw the Justices out of office.

Similar reactions ran through the blogosphere recently in response to Judges Janice Brown and David Sentelle’s concurring opinion in Hettinga v. United States. The question in that case was whether or not a constitutional challenge to a federal regulation which treats one dairy operation in Arizona different than every other dairy in the country could be dismissed–  prior to any evidence being gathered– based solely on the government’s claim that the regulation serves a public interest. The court concluded that it could. Yet, because Judges Brown and Sentelle dared  to question whether or not it was wise to dismiss constitutional claims based solely on government fiat, they were labeled activists and conservative revolutionaries.

The recurring theme running through the reaction to both cases is that if you ask the government to play by the rules, you are not only an activist, but so radical that you should be scorned and removed from the bench.

This is utter nonsense. If the rule of law means anything it is that everyone must play by the rules… even the government. To paraphrase Lord Coke, even the king is subject to the law. The need for restraint does not disappear merely because the sovereign is a democratically elected legislature instead of a Monarch.

Indeed, it is this judicial check on the power of the sovereign that distinguishes us from the democratic authoritarian regimes throughout history. The jurists in Severence and Hettinga merely pointed that out. That doesn’t make them activists. It shows them to be guardians of freedom and the rule of law.