Mike Kelsey on Originalism and Judicial ActivismMichael Ramsey

At The Heritage Foundation's The Foundry, Mike Kelsey says: Dear Liberals, Originalism is not Judicial Activism.

I disagree.  Sometimes it is.  But that doesn't (necessarily) mean there's anything wrong with it.

These sorts of debates would, I think, be more meaningful if we could agree to define judicial "activism" 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).  Then we could have a useful discussion about when (if ever) it makes sense to have judges aggressively intervene against the decisions of other branches of government.  Otherwise, "judicial activism" tends to degrade in meaning into "judges doing things I disagree with."

Mr. Kelsey links to Heritage's definition of judicial activism:

Judicial activism goes beyond judicial supremacy as it involves judges substituting their own preferences for laws enacted by lawmakers. This is also popularly called legislating from the bench. Judicial activism is incompatible with the principle of the rule of law as it allows unelected judges to overrule the will of the people as expressed through law.

But defining judicial activism this way conflates two very distinct questions: (a) how aggressive should judges be in ruling against the political branches?; and (b) on what basis should judges rule against the political branches?  Originalism is an answer to the second question; it is compatible, at least, with answering the first question "very aggressive."  The judicial activism/judicial restraint debate, in contrast, is better understood as a debate about the first question -- a question on which originalists might have a range of answers.