Erwin Chemerinsky is the dean of the law school at the University of California at Irvine. In this op-ed column, he argues that conservatives are hypocritical (or at least inconsistent) for condemning "judicial activism" while celebrating yesterday's Supreme Court decision. With all due respect to the dean, he doesn't know what he's talking about. Judicial activism consists not in striking down statutes as unconstitutional (that's judicial review), but in (1) striking down constitutional statutes or (2) upholding unconstitutional statutes. An activist is a judge who substitutes personal preference or political ideology for law.
So whether yesterday's ruling is a case of judicial activism depends crucially on whether the statute in question violates the United States Constitution. If it does, then the Court was not engaged in judicial activism; it was doing its job. If it does not, then the Court was engaged in judicial activism and should be condemned for it. Everything hinges on the substantive issue. Here is the sum and substance of Dean Chemerinsky's case that the statute does not violate the Constitution: "there is not the slightest shred of evidence that the framers of the 1st Amendment meant to protect the rights of corporations to spend money in election campaigns."
Why is Dean Chemerinsky appealing to the meanings (i.e., linguistic intentions) of the framers? Is he an originalist? The First Amendment is clear: "Congress shall make no law . . . abridging the freedom of speech." Doesn't the statute in question abridge freedom of speech? Do we need to ask what the framers meant by those words (as opposed to what the words mean)? (I'm distinguishing, as philosophers of language do, between speaker's meaning and sentence meaning.) Are we to assume that the framers meant something other than what they said? Does the good dean think that the framers were speaking nonliterally, e.g., sarcastically, ironically, figuratively, or hyperbolically? If so, what is his evidence for that remarkable assumption? Isn't there a presumption of literality in legal contexts? The framers meant what they said, and what they said is clear.
Perhaps the best refutation of Dean Chemerinsky's argument is a counterquestion: Is there a "shred of evidence" that the framers of the Constitution meant to protect the rights of women to kill their unborn children?
It saddens me when the dean of a law school, who should be above the fray, reduces himself to a political hack.
Addendum: This appears to be Dean Chemerinsky's argument:
1. There is no evidence that the framers of the First Amendment meant to protect the rights of corporations to spend money in election campaigns.
Therefore,
2. The First Amendment does not protect the rights of corporations to spend money in election campaigns.
If we apply this to abortion, we get:
1. There is no evidence that the framers of the Constitution meant to protect the rights of women to kill their unborn children.
Therefore,
2. The Constitution does not protect the rights of women to kill their unborn children.
This is called refutation by logical analogy, or, in the vernacular, being hoist with one's own petar.
Keith Burgess-Jackson, J.D., Ph.D. 