[Mb-civic] The Uses of 'Activism' - George Will - Washington Post

[William Swiggard]

The Uses of 'Activism'

By George F. Will
Thursday, September 1, 2005; Page A29

Debate about the role of judges in American governance is a hardy 
perennial, arising from the tension between one result of judicial 
review -- the invalidation of laws enacted by elected representatives -- 
and popular government. This is what the late Alexander Bickel of Yale 
Law School called the "countermajoritarian difficulty." But it should 
not be an agonizing difficulty for conservatives, who should cast a cool 
eye on any sentimental celebration of unchecked majorities.

Today the debate is colored by the fact that the more conservative party 
controls the presidency and both houses of Congress. Convinced that 
popular sentiment is with them, some conservatives fan the flames of 
resentment of judicial review, calling for judicial "restraint." They do 
so in the name of dogmatic majoritarianism -- the right of majorities to 
have their way. There are, however, impeccably conservative reasons for 
regarding judicial review as a valuable restraint on majorities, and 
hence for having high regard for some judicial activism.

The conservatives' party, the Republican Party, was born in reaction 
against repeal of the Missouri Compromise -- against, that is, the 
right, established by Congress in 1854, of Kansans to own slaves if a 
Kansas majority approved of that. The first Republican president was 
propelled to greatness by his recoil against allowing popular 
sovereignty to decide whether slavery should expand into particular 
territories.

Lincoln's greatness was inseparable from his belief that there are some 
things that majorities should not be permitted to do -- things that 
violate natural rights, the protection of which is the Constitution's 
principal purpose. As Chief Justice John Marshall said in Mar bury v. 
Madison , the theoretical foundation of judicial review, "The powers of 
the legislature are defined and limited; and that those limits may not 
be mistaken, or forgotten, the Constitution is written."

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/31/AR2005083102258.html?nav=hcmodule
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