Thursday, May 28, 2009
Rick asked (here), and, so, I answer.
I don't like the term judicial "activism" (or judicial "activist"), because the term can and does mean different things to different people.
As Rick, who has kindly read my new book, knows, I distinguish between (a) the *interpretation* of a constitutional *text*--which process yields a constitutional *norm*-- and (b) the *specification* of a constitutional *norm* (if the norm is, as constitutional norms often are, underdeterminate in the context of the case at hand, the case that implicates the norm.) The process of "specifying" a contextually underdeterminate constitutional norm is the process of making the norm concrete--determinate--in the context at hand, the context in which it the norm is, before it is "specified", underdeterminate. It is the process of deciding what the norm should be understood to require in the context at hand.
Then, against the background of that distinction--between interpreting a text and specifying a norm--I make a further distinction: between (a) judges who take up a stance of judicial *deference* (or, as I like to call it, Thayerian deference) in specifying a constitutional norm and (b) judges who do not take up--who reject--reject that stance.
For a judge who takes up the stance of Thayerian deference in specifiying a rights norm, the question is: "Is the lawmakers' judgment that the challenged law does *not* violate the right a *reasonable* judgment? If so, I will not strike down the law as unconstitutional."
For a judge who rejects that stance, the question is: "Does the law violate the right? [That is, in my judgment, does the law violate the right?] If I conlude that it does, I will strike down the law as unconstitutional."
By the way, Rick, it is not my view that Thayerian deference is always the appropriate judicial stance. For example, and as I explain in work I am currently doing, it is not the appropriate stance if the rights norm at issue is the right to freedom of speech.
In any event, I think the distinction between judges who embrace Thayerian deference (what judges *do* embrace it?!) and judges who do not is an important distinction for constitutional theory.
UPDATE. One more thing: "Originalism" addresses the matter of constitutional *interpretation*--that is, the matter of interpreting a constitutional *text*; it does not address the matter of constitutional *specification*--that is, the matter of specifying a constitutional *norm*.