Don't Let Me Stop You

What the heck, you'll do what you want anyway.

George Will on Kelo

Posted by Dan Draney on June 25, 2005

George Will has an interesting take on the Kelo v. New London decision, through the prism of “judicial activism” vs. “judicial restraint”

George Will: Damaging ‘Deference’: “Liberalism triumphed Thursday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.

Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises ‘judicial restraint’ and deference to — it sometimes seems — almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary’s indispensable role in limiting government.”

He has a point. If judicial “restraint” means sitting by and doing nothing as the government encroaches further and further into the lives of the people, it’s no improvement on “activism.” This is not just a matter of semantics, but the meanings of the terms do obscure the issues somewhat.

Conisder a situation where decades or even centuries of case law precedents exist. Generally, courts are expected to give great weight to the decisions of prior courts and regard them as settled law. However, if previous judicial activism is reversed, is that decision “activism” or “restraint?” Depending upon one’s definitions of the terms, either one might be descriptive. In our own view, reflexively letting prior “activism” stand would be to condone it, creating a “one-way street.” Not only is this not a winning strategy, it doesn’t make any sense to insist that “restraint” means always letting bad precedents stand, unless the objective is to discredit the idea of “judicial restraint.”

If the precedents have greatly reduced the limitations on government imposed by the original constitutional language, how much respect is due these precedents? Is is “activism” to return to the original meaning of the constitution? Will suggests that it is, and that does conform to the normal meaning of the word. Certainly, those opposed to restoring prior limits on government power will call such a ruling “judicial activism.”

In the Kelo case precedents have now stripped away essentially all restraint on the power of eminent domain. This has been done incrementally, gradually, with looser and looser interpretations of “public use.” Justice Clarence Thomas called for revisiting several previous rulings on “takings” with an eye toward reversing them, and we applaud him for that. A case can be made for calling this “restraint” rather than “activism” in that “restraint” is being retroactively applied in reversing previous “activism.”

A better term for this philosphy is “originalist,” as Thomas bases his arguments on the original language and meaning of the constitution. We tend to also think of it as “judicial restraint,” although as Will points out, this can get confusing. In any case, there is plenty of original language supporting the intent that the courts can and should restrain the power of the federal, state, and local governments.

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