Freedom Line Blog

As a longtime fan of the video work done by our friends over at Reason, I have to admit astonishment at a video that surpasses even their usually high standards.

Check out the latest from the West Coast libertarians on how an expansive judicial interpretation of the Commerce Clause has become a blank check to Congress (skeptics take note: Erwin Chemerinsky, the UC-Irvine Law School dean featured here is not a liberal straw man dug up for the purposes of this video. He’s a highly regarded intellectual on the legal left — which ought to make his closing comments even more disturbing).

That’s the point argued by UC Irvine law school dean, Erwin Chemerinsky, in response to the Supreme Court’s ruling yesterday restoring political free speech. He says:

But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents.

While Chemerinsky makes a neat distinction, his argument hides the fact that liberals have stacked the deck in their favor. If it’s true that judicial activism is always characterized by deferring to other branches of government and following precedents, then once an activist decision departs from the norm it immediately becomes sacrosanct because it is now a precedent. And if conservatives want to avoid hypocrisy, then they must swallow hard and accept path-breaking precedent under the doctrine of stare decisis. That is, until their liberal colleagues decide that more heresy-turned-orthodoxy is warranted.

Liberals applaud themselves for eschewing precedent when they see fit, but then accuse conservatives of hypocrisy when the latter seeks to return the law to its understanding prior to the liberals’ departure. Only then do progressives make a pretense of respecting legal tradition under the guise of “super duper” precedents that serve their policy agendas.

Conservatives aren’t guilty of activism when they restore the law to what it was before. As George Will notes, announcing that the First Amendment protects political speech about the government is only radical because of the unconstitutional legislation and opinions about it over the last forty years. Chemerinsky is too smart not to know that; it’s just a whole lot easier to argue for selective adherence to stare decisis while reversing your opponent’s criticisms.