David's Hammer: The Case for an Activist Judiciary

By Leef, George C. | Freeman, June 2008 | Go to article overview

David's Hammer: The Case for an Activist Judiciary


Leef, George C., Freeman


David's Hammer: The Case for an Activist Judiciary by Clint Bolick Cato Institute * 2007 * 177 pages * $11.95 paperback

Reviewed by George C. Leef

In recent years "judicial activism" has been assailed from both ends of the political spectrum. Conservatives complain about "liberal" activism when courts strike down laws they favor, and "liberals" complain about conservative activism when judges interfere with any of their schemes for controlling society. Can anything be said in its defense?

Emphatically, yes, answers Glint Bolick in David's Hammer. Bolick, a veteran constitutional lawyer, contends that there is good judicial activism and bad judicial activism. The book is his attempt to sort the two out and explain why the good variety is important to a free society. He's right on target in saying, "With the explosive growth of government at every level and the concomitant erosion of liberty, what we really have to fear from the courts is not too much judicial activism, but too little."

Bolick argues that the Constitution meant for courts to assume an "activist" stance to protect the people's liberties against incursions by the other branches of government. Both the liberal and conservative critiques of judicial activism, unfortunately, amount to nothing more than unprincipled sniping at the courts for interfering with statutes and regulations they like. As an antidote to unprincipled activism (and its equally bad twin, inactivism), Bolick advocates five general rules for judges:

* Carefully review all contested actions by federal, state, and local governments that implicate individual liberty.

* Evaluate laws with a presumption that liberty should be preserved.

* Remember that the Constitution enumerates the proper sphere of government power, so if there is no legal basis for an exercise of power, it is void.

* Read the Constitution so as to give meaning to every word.

* Don't exercise legislative or executive powers.

Most of the book is devoted to cases Bolick has litigated that illustrate his philosophy about judicial activism. He begins with an excellent example, the case of Juanita Swedenburg. She grew grapes and made wine in Virginia and wished to be able to sell her products to customers around the country. The trouble was that many states had laws prohibiting interstate shipments of wine. Vintners like Swedenburg couldn't sell in New York unless they established a "physical presence" in the state, but doing that would be far too costly for small sellers. …

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