Read this. I can't imagine anything more ridiculous. Suppose Congress and the president enacted a law that made Roman Catholicism the official religion of the United States. The United States Supreme Court would strike it down in a heartbeat as a violation of the First Amendment, which prohibits, inter alia, the establishment of religion. This Supreme Court ruling, according to the study cited, would constitute judicial activism, despite the fact that it enforces a clear constitutional norm. Unbelievable! With law professors like this, who needs morons? For the record, judicial activism is not the striking down of legislation. It is the striking down of constitutional legislation, i.e., legislation that comports with the Constitution. The judge's job is twofold: first, to uphold constitutional legislation; and second, to strike down unconstitutional legislation. If the judge either upholds unconstitutional legislation or strikes down constitutional legislation, then the judge is engaged in activism. Activism means substituting one's own norms for those of the Constitution.
Judicial Activism
Posted at 2:20 PM CT on Monday, 11 September 2006
The liberal's response to this is: is it not the judge's job to interpret the constitutionality of the legislation? So who are you to say that he was wrong in his interpretation when it's his job to do the interpreting? In other words, how would you be able to prove that one interpretation -- in areas that are vague -- is the correct one?
For instance, liberals assert that the striking down of gay marriage bans by judge's is not judicial activism but is consistent with their job to strike down unconstitutional legislation.