What is judicial activism? Thomas Sowell answers in his recent piece, The “Judicial Activism” Ploy.
“Judicial activism” is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything.
In recent years, a brand-new definition of “judicial activism” has been created by the political left, so that they can turn the tables on critics of judicial activism.
The new definition of “judicial activism” defines it as declaring laws unconstitutional.
It is a simpler, easily quantifiable definition. You don’t need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a “judicial activist.”
A judge who lets politicians do whatever they want to, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution.
He then provides a history lesson on how government began diverging from the Constitution about 50 years ago.
The Tenth Amendment to the Constitution says that the federal government can do only what it has been specifically authorized to do by the Constitution. Everything else is left to the states or to the people themselves.
Nevertheless, back in 1942, the Supreme Court said that because the federal government has the right to regulate interstate commerce, the Department of Agriculture could tell a farmer how much wheat he could grow, even if the wheat never left his farm and was consumed there by his family and their farm animals.
That case was a landmark, whose implications reached far beyond farming. If the meaning of “interstate commerce” could be stretched and twisted to cover things that never entered any commerce, then “interstate commerce” became just a magic phrase that could make the Tenth Amendment disappear into thin air.
For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce.