"There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.Right. Okay. The former creates rights not specified or implied by the Constitution, the latter defends rights the Framers actually placed there. Sure.
This is, basically, the argument that John Hart Ely's book Democracy and Distrust identifies as "interpretivism," the idea that the courts should not look to any values or rights or whathaveyou not explicitly stated or directly implied in the text of the Constitution, the idea being that if the Courts follow this practice then judicial review is really just the Constitution overturning laws, not judges overturning laws. Will is arguing that judicial review is okay iff it is sufficiently interpretivist.
There are several problems with this argument. First off, note that the argument against the health care reform law is not actually a rights-based argument, it is a powers-based argument. The claim is that the grants of power to the federal government in the Constitution do not include a power to coerce commerce as opposed to non-commerce, not that there is a prohibition placed on the federal government somewhere in the Constitution that would impede the exercise of a seemingly-applicable power in this specific case. And essentially every time conservatives object to activist liberal judges, they are applying the rights-based portions of the Constitution, the prohibitions on government action. So for conservatives, courts should be highly engaged in enforcing a narrow construction of government powers and also restrain from enforcing a broad construction of individual rights. This is, to put it bluntly, backwards, for fairly obvious reasons.
A grant of power to do X to the government is presumably made on the understanding that for the government to do X is good. A prohibition that the government may not do Y is presumably made on the understanding that for the government to do Y is bad. This being the case, why would you construe the right to do good things narrowly and the injunction from doing bad things narrowly? Wouldn't we want to let the government do good things and not let it do bad things? One could also argue that a grant of power is in certain ways a sign of trust that the recipient of that grant can be trusted with that power, while an explicit restriction on the use of power is in certain ways a sign that the object of that restriction cannot be trusted when using that power in approximately that way. After all, why prohibit free speech if a properly democratic government can be trusted not to improperly invade free speech?
Even beyond these attempts to psychoanalyze the framers (a.k.a. discern their original intent), we have two things called Article 1, Section 8, Clause 18 and the 9th Amendment. The former declares that the Congress shall have the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The latter commands that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." To me, those sound like instructions that both rights and powers are to be construed broadly. And they're in the Constitution!
Which really brings me to the final point. I just made a bunch of arguments why I think George F. Will's philosophy of Constitutional interpretation is wrong. I suspect he disagrees with me, for various reasons. But notice that the liberals, the so-called non-interpretivists who want judges to read things not explicitly stated into the Constitution, do not decide to do so on a whim. They do so because the Constitution asks them to do so. Necessary and proper. Unenumerated rights. Privileges and immunities of citizens of the United States. Due process of law. Equal protection of the laws. Unreasonable search and seizure. Cruel and unusual punishments. What do these mean? These are actual concrete bits of the Constitution, just as valid as the parts requiring a two-thirds majority of both Houses of Congress to override a veto. They're here, they're vague, get used to it. It may or may not be reasonable to interpret these as deliberate delegations to future generations of the power to decide for themselves what constitute necessary and proper powers, or privileges and immunities of citizens.
One way or the other, though, when we liberals argue that privacy is Constitutionally protected, we do not do so because we believe privacy is important and therefore we are just going to protect it, Constitution be damned. We do so, yes, because we believe privacy is important, but only important in those ways that mean it falls naturally within, say, the definition of a privilege or immunity of a citizen of the United States. (Indeed, as to privacy, I think there's a strong argument to be made that the Constitution countenances privacy, between the 3rd Amendment prohibiting quartering of soldiers and the 4th Amendment's restrictions on unreasonable search and seizure, and the 9th Amendment.) Nobody thinks one should overturn a law simply because you disagree with it. Some of us think that the vague parts of the Constitution are probably vague with deliberate intention and that we, the people of the current United States of America are to provide content to those provisions, and that therefore our non-interpretivist values are in the Constitution.
George Will presumably disagrees. But he doesn't just say that he disagrees with us, or that we, the liberal judiciary are performing a legitimate function badly. He says that we are performing an illegitimate function, while judges who agree with him perform a legitimate function. I do not charge that Clarence Thomas wants the Court to do something that would be illegitimate for it to do. I claim that he wants it to do what it ought to do in a bad way, a way that I disagree with. And I have various reasons why I think I am right and he is wrong; otherwise, I would not disagree with him. Let's not bicker and argue about who's usurping who; let's just agree that we disagree about how to use the Court's power.
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