What Is Judicial Activism?


The question of judicial activism is a hotly debated and extremely divisive issue. Often, this is because the consequences of judicial decisions can be substantial.

In expressing the issue of judicial activism, I have often asked myself several surface questions. Is the law a living entity? Should judges take into account changing circumstances to revise the law? Should the legislative branch alone make laws? Should the judicial branch only determine constitutionality? 

To supplement these surface questions, I often ask several more in-depth and slightly more challenging questions. Is there a difference between judicial activism and statutory interpretation? Should a judge’s opinion inform constitutional interpretation, and is there a line between interpretation and usurpation?

Many of these questions fall into the ongoing debate between loose constructionism and strict constructionism. 

Loose constructionism, or the living constitution doctrine, is the idea that the founders purposely crafted a vague document with loose terminology. That way, future generations could maintain flexibility in its interpretation and application. 

The counter-argument to this idea, strict constructionism, refutes the concept by pointing out the availability of the amendment process to the Constitution. Strict constructionism, sometimes called textualism, questions the premise of loose constructionism. It asks why the Constitution gave Congress the specific responsibility to craft new laws and to refine the Constitution through the legislative process if the founders had expected changes of approach and definition to be available through interpretation alone.

As opposed to falling firmly within either the loose construction or strict construction camps, I view myself as an originalist. Originalism is the idea that legal interpretation should neither justify meaning from the statutory language beyond original intent, but neither should it focus solely on the language itself while ignoring the intent of those who crafted the law. 

Most originalists understand that judicial activism is a far more complicated idea than most assume, especially since different opinions and views of intent can inform judicial decisions and not every judgment that’s counter to one or the other side’s political narrative is necessarily judicial activism. Two specific examples are guns and abortion.

The right to bear arms is a volatile subject for many. There are those on both sides who accuse judges of judicial activism when they side one way or the other. Sometimes, these accusations ignore the fact that often these judges have arrived upon their legal understandings in ways that inform their decisions beyond simply “legislating from the bench.” 

There may be some judges who rely solely on opinion to rule against gun rights or on behalf of gun rights. But most simply hold different interpretations of what actually constitutes the right to bear arms. 

The same holds true for abortion, which to the honest observer is actually a complicated consideration between two seemingly inherent natural rights: the right to be free from coercion and the right to live. 

As an originalist, I recognize different opinions are not necessarily judicial activism. But instead of arguing about the looseness or strictness of the wording, I inform my understanding by seeking the intent, or the spirit, of the law. 

My definition of a judicial activist is a judge who concedes that no intent existed for a given law to apply in a given situation, yet nevertheless justifies a decision reflecting political or ideological leanings to craft new legislative intent or create a radically different approach.

In the end, I believe the pillar of our form of government is the idea of separation of powers. The Constitution divides the government into three branches so that the responsibilities of crafting the law, interpreting the law, and executing the law are never held in the same hands. This construct of federalism is frustrated when either branch seeks to co-opt the other. Justin Stapley is a liberty-minded writer who is grounded in the principles of ordered liberty as informed by the ideas of classical liberalism, federalism, and modern conservatism. He is the owner and editor of The Liberty Hawk and the voice of The New Centrist Podcast. You can follow him on Facebook and on Twitter, or subscribe to his newsletter, From the Hawk’s Nest