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This Week's "Your Turn" Radio Show Lineup

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm ET: Hans von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Meese Center for Legal and Judicial Studies at The Heritage Foundation: On Sessions' Watch;

4:15 CDT/5:15 pm ET: Lee Casey, Partner at Baker & Hostetler: Detractors Denouncing Constitution;

4:30 CDT/5:30 pm ET: Trey Kovacs, Policy Analyst at the Competitive Enterprise Institute: Veterans Department Ends Labor Union Work on Taxpayer Dime;

4:45 CDT/5:45 pm ET: Tzvi Khan, Senior Iran Analyst…[more]

November 12, 2018 • 04:24 pm

Liberty Update

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
Conservative Judicial Activism Is Just As Objectionable as Liberal Judicial Activism Print
By Timothy H. Lee
Thursday, September 06 2018
[I]f judges exercise excessive activism by overturning laws that violate only their policy preferences, the judicial branch becomes an unelected oligarchy.

"Who says Roe must say Lochner." 

So wrote Judge Robert H. Bork in The Tempting of America

Published in 1990, Judge Bork's tour de force remains a masterful primer on jurisprudence, and recounts his ordeal against the sleazy and mindless assault by Senator Ted Kennedy, Senator Joe Biden and others against his nomination by Ronald Reagan to replace Justice Lewis Powell on the U.S. Supreme Court. 

This week, Judge Bork's admonition gained renewed salience as Senate confirmation hearings began for Judge Brett Kavanaugh to fill the seat for which Judge Bork was nominated, due to a budding debate within the conservative community over the proper role of the judicial branch in our governmental system. 

Specifically, some conservatives and libertarians continue to advocate judicial activism under which judges create law rather than interpret law, as in the infamous 1905 U.S. Supreme Court decision in Lochner v. New York, even though they protest when leftists do the same thing in such cases as Roe v. Wade

But as Judge Bork presciently cautioned, judicial activism of the Roe and Lochner sort undermines proper jurisprudence and ordered liberty, albeit from differing ideological perspectives.   

Here's why all of this matters beyond an esoteric legal debate. 

Our Constitution's separation of powers between the three branches of government constitutes the most effective system ever devised, and allowing the accumulation of excessive power by any one of those branches jeopardizes ordered liberty. 

Our Founding Founders valued the democratic ideal of majority rule, but they realized that majorities could sometimes become tyrannical and trample upon the rights of minorities.  The Founders also valued the efficiency of a single ruler, but they realized that rule by one person could create a dictatorship.  And the Founders valued the ability of judges with lifetime appointments to apply the laws without fear of democratic backlash, but they had just fought a war for independence to break from aristocratic rule. 

In The Tempting of America, Bork captured that balancing dilemma brilliantly: 

The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled.  The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.  The second is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.  The dilemma is that neither majorities nor minorities can be trusted to define the proper spheres of democratic authority and individual liberty.  To place that power in one or the other would risk either tyranny by the majority or tyranny by the minority...  The freedom of the majority to govern and the freedom of the individual not to be governed remain forever in tension. 

To resolve that Madisonian dilemma most effectively, the Founders empowered Congress in Article I of the Constitution to create laws, the President in Article II to enforce laws and the judicial branch in Article III to interpret laws.  

The Founders also specifically protected certain minority rights against infringement by tyranny of the majority in the Constitution's text and the Bill of Rights.  Those rights included freedom of speech, freedom of religion, the right to keep and bear arms, freedom from unreasonable searches and seizures, the right against cruel and unusual punishments and so forth. 

Majorities, however, were generally allowed to exercise self-government in policy areas not removed from democratic rule. 

That's where Lochner v. New York (1905) comes in. 

The state of New York had simply passed a law capping the number of hours per day and per week that bakers could be required to work.  Sounds straightforward and unobjectionable enough, right? 

The U.S. Supreme Court, however, struck down the law as contrary to a non-existent "right to make a contract in relation to his business."  Reasonable people rightly assert as a policy matter that government should generally refrain from excessive intrusion into the private employer/employee relationship, and instead let free market principles prevail. 

But to label that policy preference a "right," when it appears nowhere in the actual text of the Constitution, violates citizens' right to self-governance by majority rule.  That amounts to rule of men, not of law, determined by judges' particular political preferences rather than legal text.   

Some conservatives, however, celebrate Lochner and advocate that courts engage in similar behavior going forward.  As a leading example who again chimed that discordant bell this week in anticipation of Judge Kavanaugh's confirmation hearings, columnist George Will continues his misplaced agitation in favor of Lochner, and a form of judicial activism that conservatives should flatly reject. 

That philosophy would elevate judges to what amounts to a judicial oligarchy.  Where judges overturn democratically enacted laws based upon policy preferences rather than a legal text to which they can point, the legislative and executive branches become neutered by unelected judges. 

None of this is to defend the opposite approach, in which judges become too deferential to coequal branches and refrain from overturning laws that do violate the text of the Constitution.  The 2012 ObamaCare decision and the 2005 eminent domain case of Kelo v. City of New London constitute examples of such excessive deference. 

If judges exercise excessive restraint from overturning laws that violate enumerated rights, then the judicial branch becomes irrelevant.  But if judges exercise excessive activism by overturning laws that violate only their policy preferences, the judicial branch becomes an unelected oligarchy. 

Either form of excess violates the Constitution's proper balance of powers, and undermines our republican democracy, whether done in the name of liberalism or conservatism.  Judge Kavanaugh would therefore be wise to follow the wisdom of Judge Bork, the man who should've rightfully occupied the seat for which Kavanaugh is about to be confirmed. 

Question of the Week   
Which one of the following individuals has NOT been Speaker of the House of Representatives?
More Questions
Quote of the Day   
 
"Reporting the news is difficult and expensive. Grandstanding is more fun and everyone has an opinion. That's why reporters were once taught, often by a stern taskmaster, to leave opining to the columnists and the editorial page, and save their opinions for after work in the bar across the street. This particular affliction -- grandstanding rather than reporting, advocacy rather than observing and…[more]
 
 
—The Editors, The Washington Times
— The Editors, The Washington Times
 
Liberty Poll   

How confident are you that your state's election supervisors make all reasonable efforts to count every legitimate vote and reject every illegitimate vote?