Saturday, May 17, 2008

Responding to a comment re: judicial activism

The other day I posted McCain's Supreme Wrongheadedness. It included excerpts from a Jeff Jacoby column you is here.

Jacoby's main point:

Judicial deference to the political branches has led to some of the worst judicial decisions in American history. Think of Plessy v. Ferguson, the 1896 case upholding a Louisiana statute that mandated racial segregation in public accommodations. The Supreme Court certainly deferred to the elected lawmakers who wrote that statute. It also helped lock Jim Crow in place for the next 60 years. (emphasis added)
The post drew a number of thoughtful comments.

One of them left me thinking I may not have explained myself clearly and may have provided too little of Jacoby's colum.

I'm no fan of what's commonly called "judicial activism;" neither is Jacoby.

So first some of the comment, then an excerpt from Jacoby's column I left out of the post.

I think the excerpt will clarify what Jacoby meant and why I agreed with him.

The commenter said in part:
I think you and Mr. Jacoby are making a false assumption. The absence of Judicial activism does not equate to rolling over and rubber-stamping any law that is passed. Most believe the absence of Judicial activism equates to a Court which decides cases based upon the Constitution and case law. Nothing more.
Here's the part of Jacoby's column I should have included in the post:
In Wickard v. Filburn (1942), the court upheld the government's power to impose quotas for wheat even on a small farmer who used what he grew right on his farm and sold none of it across state lines.

The court should have struck the law down as a blatant violation of the Commerce Clause, which limits Congress to the regulation of interstate commerce - something Farmer Filburn clearly wasn't engaged in. Instead the court allowed it, throwing open the door to a vast expansion of federal control.
Folks, I hope in your collective judgment you rule that clarifies things.

If not, I'll appeal.


Anonymous said...

John, I'm honored you quoted me in your post.

Yes, Mr. Jacobi's quote highlights a typical case of Judicial neglect. Thank you for the expansion and, clearly, we are on the same wavelength.