Tuesday, April 03, 2007

Clint Bolick: David's Hammer, The Case for an Activist Judiciary


Author: Clink Bolick
Title: David’s Hammer: The Case for an Activist Judiciary
Publisher: The Cato Institutie, Washington DC
Date: April 2007
ISBN: 978-1-933995-02-1
Description: Paper, 188 pages, indexed (Cloth also available)

(Note on ISBN’s: Most books today are published with a 10-digit ISBN and a 13-digit “truly” international standard book number. Gradually the 13-digit code is becoming the accepted number.)

This new work was presented at a noon Cato book forum in Washington today. The two core concepts seem to be judicial activism, and judicial review, which are not the same. The role of the judiciary is particularly critical in the checks and balances of American government, although it is taking on that kind of role in the European Union as well now.

The book has eleven chapters, and starts with a particularly well nuanced case, of Juanita Swendenburg, a wine grower from Virginia. Michael Laris had written up the story of her case before the Supreme Court in the May 17, 2006, page B04 The Washington Post, “A Bittersweet Victory for Va. Winemaker,” here: The Court overturned several state laws that prohibited her from exporting her product to other states without having plants (and employing people) in those states. Her arguments centered around the Commerce clause and countering protectionism, but she had to content with the idea that the 21st Amendment, which had repealed Prohibition, arguably gave states the right to control importation of alcoholic beverages. Another nuance was the Internet, and the idea of efficient selling without bricks and mortar stores, employees and plants in a locality.

Bolick goes on to discuss the role of an activism judiciary in a number of individual rights areas, varying from sexuality issues to economic rights and eminent domain. He mentions the gay marriage issue (with Massachusetts) early, as a situation where state supreme courts are weighing in. Later he discusses Lawrence v. Texas (2003) as a reversal of Bowers v. Hardwick(1986) on sodomy laws.

There has always been a question about how the courts recognize “fundamental rights” unless spelled out in words in the Constitution or Bill of Rights. Gradually, courts have become willing to expand this notion, partly because of the penumbra clause, 9th Amendment. The level of scrutiny required to uphold a law depends in some part on whether an explicit (e.g. fundamental) liberty interest is trampled. For example, “expressive association” has come to be accepted as a First Amendment interest (part of freedom of assembly) and was used to allow the Boy Scouts to exclude gays in James Dale v. BSA. So is private, consensual adult intimate contact protected? That was in a sense tested in Lawrence, although it had to be parsed from equal protection concerns (as with Romer v. Evans).

What comes across in all of these debates is that “public morality” (a notion defended by the 5th Circuit in a 1985 ruling regarding Texas 21.06, 18 years before Lawrence) is a subjective concept that seems to function to protect the emotional world (even from “hurt feelings”) of conventional families with children from distraction from the cultural competition of the outside world. That notion certainly buttresses institutionalistic defenses of traditional marriage from court challenges demanding recognition of same-sex marriage.

In economic rights, the grounding in ideas of fundamental rights may seem less clear, except that the Fourteenth Amendment certainly gives property rights as foundation as a fundamental liberty interest. Many of the controversies that reach the Court deal in some way with “protectionism” – a desire of one economic group to protect its members from competition. Group loyalty is always morally double-edged, as when we deal with union (or family) issues, but sometimes it gets extended with all kinds of laws preventing entrepreneurs competing with established business interests with low-cost models. John Stossel has mentioned many cases involving cosmetology, food preparation, and especially pedicab or independent van services. Local governments often pass these laws under pressure from lobbyists representing industries wanting to retain monopolistic control. This has not happened in the publishing or media business with the Internet, but over time there could be such pressures even in these areas.

Bolick discusses state constitutions, as often being more specific in enumerating fundamental rights than the U.S. Constitution, and often offering potential plaintiffs more legal standing. In that regard, however, it is odd that Virginia amended its own bill of rights to prevent gay marriage and civil unions. But President Bush keeps talking about needing a federal constitutional amendment to protect "the sanctity of marriage" from state supreme court activist judges.

The title of Bolick’s book apparent refers to the boy-king in the Old Testament facing Goliath. There is a science fiction novel called “Lucifer’s Hammer” by Niven and Pournelle, a title which Bolick’s reminds me of.

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