Let me put one fundamental point front and center that unfortunately often needs to be repeated: it is entirely possible to abhor racism and discrimination of any sort and still be against laws that legally prohibit private discrimination.  First, these laws inherently narrow the scope of what the First Amendment protects by limiting our right to associate with whom we wish.  Second, the question of whether the federal government can constitutionally reach private discrimination is completely different than the question of whether the federal government can constitutionally reach public discrimination.  The latter can be accomplished under section 5 of the Fourteenth Amendment because the requisite state action exists.  The former has nothing to do with state action and thus can only be reached through Congress’s commerce power. These are two entirely different legal questions.

Paul touched on the free speech issue (though not sufficiently) but he didn’t attempt to explain the question surrounding the federal government’s power to prohibit private discrimination.  He mentioned the advantages of having such decisions made locally but didn’t question the federal government’s power to pass such laws.  As a result this important legal nuance went unaddressed and remains so in all the post interview buzz in the media.

This is a conversation worth having.  We shouldn’t evaluate the propriety of a federal law based solely on whether we like what it’s trying to do.  As inconvenient as it might be, we also have to consider whether government has the power to do it.

One of the posters Taylor left at the airport depicted a smiling crucified Christ next to an advert for a brand of “no nails” glue. In another, a cartoon depicted two Muslims holding a placard demanding equality with the caption: “Not for women or gays, obviously.” A third poster showed Islamic suicide bombers at the gates of paradise being told: “Stop, stop, we’ve run out of virgins”.

Professor Volokh calls this “an appalling restriction of free speech” and asserts that he likes “our free speech rules much better.”  But I don’t have too much of a problem with this considering Europe’s unique racial dynamic, particularly with respect to its Muslim minority.  I blogged about this precise topic about a year ago (see here).

The unique context of an airport prayer room makes this a form of harassment first and free speech second.  There are certainly different contexts where the situation might be the opposite.  Professor Volokh might like our rules better but I don’t think the United States has any unique need for restrictive  laws like these.  The European racial climate is far too volatile for their governments to risk the repercussions of such conduct going unpunished.

But I’m also starting to place a bigger premium on a particular benefit of originalism: the benefit of progressing democratically.  The practice of striking down democratically passed laws is, to me, the most problematic aspect of judicial activism.  As I mention in the posts linked above, opponents of originalism erroneously conflate the theory with “no progress.”  But by refusing to articulate new and non-existing rights in the Constitution, the Court would promote that same progress through democratic processes.  I very much prefer slow and democratic progress (assuming I’m for the substantive result) to quick and judge-made progress through incorrect interpretations of the Constitution.  But, more to the point, I almost have a general preference for any democratic law to any alternative articulation by the Supreme Court if it involves striking down that law.

Mark Tushnet wrote a book a couple of years ago called Weak Courts, Strong Rights, of which I’ve only read a snippet.  He proposes a “weak-form judicial review,” which “respects the right . . . for majorities to prevail when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those the courts offer.”  Considering that the power of judicial review is mentioned nowhere in the Constitution, much less the ultra-powerful version exercised by federal courts today, there is no constitutional problem with this kind of review, putting aside the whole “it is emphatically the province of the judicial branch to say what the law is” thing articulated in Marbury v. Madison.

Such an interpretation has several benefits.  First, it encourages democracy even more than an originalism that invalidates laws in the name of original intent.  Second, it wouldn’t hinder federal, state and local governments’ pursuit of legitimate policy objectives.  Take the three cases mentioned in the previous two posts as examples.  Should the Second Amendment  suddenly prohibit a crime-ridden city from regulating and banning certain fire-arms, considering that the law had been on the books for over 30 years — even if the Second Amendment protects an individual right?  Should the Fourteenth Amendment prohibit using race to integrate schools, when the purpose of such integration — and the Fourteenth Amendment itself — is/was to help disadvantaged African Americans?  Should the First Amendment’s guarantee of free speech prohibit the government from banning particular corporate campaign expenditures when the overriding purpose is to preserve the integrity of our basic political process and to prevent rich speech from drowning out poor speech?

Regardless of where one comes down on what the Constitution mandates in these instances, I find an interpretation of the particular constitutional provisions that permits these types of policy preferences to be entirely reasonable. Crime-prevention, diversity/integration, and preventing corruption are all compelling justifications for the laws at issue in those cases, and, putting aside the Court’s strict scrutiny jurisprudence, would seem to pass a reasonableness test.

A third benefit of this approach is that it would seem to lessen the likelihood of politically motivated decisions cloaked in legal justification.  It would be more difficult for an activist judge to implement an alternative policy from the bench if the law merely had to represent a reasonable interpretation of the Constitution.  This would also create a truer version of political accountability, as the populace is not free to overturn a Supreme Court decision with which it disagrees, absent a constitutional amendment.

Clearly this isn’t the way our Constitutional system works at the present.  And I’m not even entirely convinced that it’s a better method.  But I can’t help but be sympathetic to a form of judicial review that tends to defer to democratically passed laws as opposed to one that permits judges to permanently prohibit a particular brand of policy by striking down such laws — regardless of whether the decision is originalist or not.  Under this type of analysis, all of the cases we’ve discussed — including Roe and Lawrence – may have been wrongly decided.

I think max is fundamentally correct, but I would put a slightly different twist on the matter. There are certainly those, like Toobin, who view judicial activism as the court overturning a democratically determined law or rule. By that definition surely the court’s “conservatives” and “liberals” (what those terms really mean is grist for another post) are both guilty of activism.

However, the primary criticism of activism is not the act of overturning laws per se, but rather the act of overturning laws (or failing to when necessary) without the benefit of adequate constitutional imprimatur. In other words, a decision is an activist one, whether or not a law has been overturned, when the court has found something in the Constitution that isn’t there or has failed to find something that is clearly written. Infidelity to the Constitution is activism.

However, of course, max’s point remains correct. After all, whether or not one considers an opinion faithful to the Constitution is often, unfortunately, a matter of whether one approves or disapproves the policy outcome.

A more appropriate perspective is to view the constitutionality of a law not through the prism of a preferred policy outcome but rather on whether the court used permissible judicial interpretive methodology to determine whether the law was, in fact, constitutional. Under an “anything goes” philosophy of many judges (what they call “living constitutionalism”), courts lose the ability to interpret the constitution correctly or meaningfully because by unmooring the document from its foundations, it may easily float away (to mix a host of metaphors). An original meaning approach, on the other hand, is probably the one least subject to (although not entirely immune from) the dangers of interposing personal proclivity or policy preferences onto the constitutional matrix.

Under that view, the 3 cases cited by Toobin are all faithful to the Constitution and are therefore not activist decisions, although they overturn existing law. I would view Roe and Lawrence, on the other hand, as the epitome of activist judging, what they used to call legislating from the bench, because they both defy the Constitution, inserting imaginary rights where none exist in order to remove choice from the democratic populace. It is not the striking down of laws that is activist; it is contempt for our foundational legal document.

After his remarks someone in the audience asked him to address the notion of judicial activism — the controversial and difficult-to-define practice often involving the imposition of a judge’s own policy preferences or biases in the face of clear democratic majority will.  Toobin used the opportunity to argue the point that, contrary to popular belief, the liberals on the Court do not have a monopoly on activist decisions.  He points to the following conservative decisions recently handed down:

• Parents Involved in Community Schools v. Seattle School District No. 1: The Court refused to permit school districts to assign students to schools based on race in order to achieve racial integration.
• District of Columbia v. Heller: The Court held for the first time that the Second Amendment protects an individual right to bear arms and, in the process, struck down a 33 year old handgun ban in D.C.
• Citizens United v. Federal Election Commission: The Court held that the First Amendment prohibited the restriction of corporate funded political broadcasts and, in the process, struck down a portion of McCain-Feingold.

Each of these cases involved the Court second-guessing democratic policy preferences.   But on the liberal side, Roe v. Wade and Lawrence v. Texas similarly involved the Court striking down democratic laws.  It’s very difficult to dub a decision as activist without implicitly voicing a preference as to the merits of the decision — conservative and liberal judges likely think that each others’ decisions are activist if they disagree with the outcomes.

I suppose the moral of this post, then, is that one judge’s activism is another judge’s unwavering fidelity to the law.  Or maybe it’s that the Court’s jurisprudence is simply policy masquerading as law.