Judicial Abdication, Not Activism, is the Real Problem in the Courts

Jason Adkins

2/24/2011 12:01:00 AM - Jason Adkins

“Judicial activism” is a term on the lips of people across the political spectrum. Unfortunately, it has come to mean little more than “a decision I don’t like” that strikes down some law or government program as unconstitutional (such as corporate speech restrictions or Obamacare).

Contrary to the conventional wisdom, however, the real problem with today’s courts is not so much judicial activism; rather, it is judicial abdication. Judicial abdication occurs whenever courts refuse to enforce meaningful limitations on government power.

Practically everyone agrees that the government we have today bears scant resemblance to the one intended by the Constitution’s Framers—who limited the power of the federal government—or the one envisioned by those who adopted the Reconstruction Amendments after the Civil War, who limited the power of the states.

In both instances, the intent was to ensure that the Constitution serve as a charter of liberty—create a “new birth of freedom”—and not become a malleable document that would give government the power and flexibility to bend to either the perceived needs and experiences of each generation, or the will of tyrannical majorities.

So-called progressives understood that constitutions can prove horribly inconvenient when government wants to mold society by regulatory diktat, and thus a silent revolution took place in which judges and courts abdicated their responsibilities and applied a presumption of constitutionality to almost all legislation. This burdened citizens to prove a law was irrational before it could be considered an unconstitutional exercise of government power.

These days, many courts have refused to enforce even explicit constitutional limitations on government power, sometimes by deliberately broadening the meaning of words in the text and other times by ignoring them all together. Judicial abdication thus puts a heavy thumb on the scale in favor of the government and has allowed the growth of a leviathan state practically no one wants but no one knows how to control.

The solution to the marginalization of the Constitution as a bulwark of liberty is not activism or abdication, it is judicial engagement. Judicial engagement is judges fulfilling their responsibility to interpret and apply the Constitution itself—not relying on bad precedent as an excuse not to make tough decisions or, on the other extreme, imposing their political preferences and judicial philosophies.

Judges need to judge, and not simply rubberstamp whatever the government wants to do. What we see too often now are judges who ignore evidence, invent facts, and accept implausible explanations for government regulations. That amounts to judicial abdication.

Instead, judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.

A wonderful example of engaged judging occurred in 1999, when a federal judge in southern California struck down as unconstitutional the application of that state’s cosmetology licensing requirements to those who simply braided hair for a living.

The court stated that requiring braiders to attend cosmetology school—where braiding was not even taught—and obtain licenses before they could work was about as rational as requiring lawyers or doctors to obtain cosmetology licenses before they could practice their respective trades.

Likewise, the judge found that it was unreasonable and arbitrary to require braiders to attend 1600 hours of cosmetology school when police officers required as little as 600 hours of training and emergency medical professionals required only 1000.

Certainly, one could dream up hypothetical health and safety justifications for such a law. But an engaged judge takes the real facts of each case seriously. And the fact is that there were no genuine health and safety concerns requiring braiders to obtain a full-blown cosmetology license before they could work.

In other words, the judge in that case stripped away the veneer of the government’s arguments and correctly concluded that there was no plausible basis for the law other than to exclude people from working. But the government has no business protecting politically connected industries - in this case, state-licensed cosmetologists. And no serious person believes the state must regulate who braids another’s hair.

For the judge in California to have ruled otherwise would have meant ignoring what was plain to anyone with eyes to see—namely, that California’s attempt to regulate African hairbraiding was an example of naked economic protectionism—and would thus have been a classic example of judicial abdication.

Thankfully, there are still engaged judges willing to enforce the Constitution. Let’s get beyond the empty rhetoric of “judicial activism” and demand more judges who refuse to abdicate their responsibility to faithfully apply the great charter of liberty we call the Constitution.