What should receive more discussion is the notion of “Liquidating” the meaning of the provisions of the Constitution.
Over at the Originalism Blog, Mike Ramsey claims that judicial activism should be defined as “as judges being ‘active’ in the sense of aggressively intervening against the judgments of other branches of government (in contrast to judges being ‘passive’ — or ‘restrained’ — and generally deferring to the constitutional judgments of other branches).” Under that view, originalism will sometimes require judges to be activists by striking down legislation that violates the Constitution’s original meaning.
I agree that Mike’s proposed meaning is one meaning of judicial activism. But I don’t agree that this is the only one or the best one. I (and many others) rountinely use judicial activism to mean “aggressive use of the judicial power that is not justified by the law.” I don’t know why I cannot continue to use it that way.
Mike might argue, as his post implies, that the term “activism” merely suggests strong action, not illegimate action. But the words in a legal (or political) term do not necessarily define its meaning. To take an example from Mike’s scholarship, “to declare war” appears to suggest a statement in words, but its usage at the time of the Constitution indicated that war could be declared by words or actions. The same holds for judicial activism — usage allows it to be used for illegitimate aggressive action.
Now, Mike is certainly correct that our debates would be better if terms had clearer meanings. But I don’t know why that means I have to give up my usage of judicial activism, especially because that would harm — rhetorically, at least — the case for originalism. Many people continue to associate judicial activism with bad action. If I say, well originalism sometimes involves judicial activism, that would mislead some people to believing that I was criticizing originalism.
If we want to clarify matters, lets use new terms. That is, after all, why people often come up with new terms. One possibility would be to borrow the terms “strong” and “weak” from the presidential context, where we refer to a strong President or a weak presidential action. We could then refer to aggressive judicial action as “strong judicial action” without necessarily praising it or criticizing it. Probably there are better terms that could be found.
In the end, I agree with Mike that clarity in this debate would be an improvement — I just don’t believe that the way of securing such clarity is by defining judicial activism to eliminate my preferred usage of the term.