Judicial ReEngineering

2001]
PROPER JUDICIAL ACTIVISM
than the ideas of the judge. With the practice of improper judicial
activism, the Constitution becomes "an authoritative occasion for, rather
than a norm of, judicial interpretation." 162 Proper judicial activism aims
for the latter course. It recognizes that "the Constitution is form; an
appeal to 'function' is a claim that something else would be better than
the Constitution, which may be true but nevertheless isn't an admissible
argument about interpretation of the structure we have." 163 This
formalism makes structural activism more conducive to drawing bright
lines.
There are three general arguments for judicial activism: (a)
personal preferences; (b) natural or higher law; and (c) the nature of the
regime (also known as the argument from democracy or republic). As we
have seen, some judges, such as William Justice or Skelly Wright believe
in the first justification, one that this article rejects as improper judicial
activism. The second finds its grounding in "a belief in natural law," a
sense judges have been appealing to ever since Calder v. Bull. 1 6 The
third argument rests its force on the Constitution itself, on the concept
that "American democracy is not simply majority rule; rather, it is a
constitutional democracy. The majority rules within the bounds of the
Constitution, and the limits of the Constitution only have meaning if
there is somebody there to enforce those limits." 165 The difficulty among
these arguments arises when attempting to tell the difference between
when a judge is relying on personal preferences, which is not justified,
and when he is relying on natural or higher law, which is more justified.
The line is so precarious as to be almost indiscernible. 166 Given this
tendency of judicial review, the only safe course is the one that is clearly
the most justified: the argument from structure. Since judicial review
carries with it this inherent problem, it makes sense to concentrate on
the cases that present the proper role of the judiciary as jurisdictional
policemen.
The sense of structural judicial activism rests, as I have said, on the
precarious nature of judicial review as a legal device. Thus, the power of
the Court is premised on the legitimacy of judicial review. "Lacking
power of the purse or the sword, the Court must rely upon the power of
legitimacy - upon the capacity to evoke uncoerced assent and strong
162 Russell Hittinger, A Crisis of Legitimacy, in THE END OF DEMOCRACY? THE
JUDICIAL USURPATION OF POLITICS 18 (1997).
163 Easterbrook, supra note 23, at 15.
164 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
165 Chemerinsky, supra note 8, at 30.
166 Justice Iredell observed in Calder, "The ideas of natural justice are regulated by
no fixed standard: the ablest and the purest men have differed upon the subject..." Calder
v. Bull, 3 U.S. at 399.
HeinOnline -- 14 Regent U. L. Rev. 169 2001-2002