31st annual Dunwody lecturer proposes ‘controlled activism’ in judicial review

Published: April 2nd, 2012

Category: Feature

Martin H. Redish cannot be classified.

“I am not a liberal or a conservative; I annoy everybody,” he said. “I hate everybody and the feeling is mutual.”

Perpaps not as much as he lets on. In fact, nearly every seat in the University of Florida Levin College of Law’s Chesterfield Smith Ceremonial Classroom was filled by students, faculty, professors and judges March 23 for the 31st annual Florida Law Review’s Dunwody Distinguished Lecture in Law.

The Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law delivered the lecture “Judicial Review, Constitutional Interpretation and the Democratic Dilemma: Proposing a ‘Controlled Activism’ Alternative,” which focused on how the judicial branch is insulated from the rest of the government and how this allows the left and right wings to interpret the Constitution as they see fit.

“The goal of shaping a theory of judicial review has to be to balance the recognition of the role of the judiciary with its special need for humility, all growing out of the judiciary’s insulation from the political process,” Redish said.

He went on to explain the flaws in what he considered to be the two basic theories of constitutional interpretation based on this dilemma: originalism and non-textualism.

Originalism, a traditionally right-wing theory, seeks to reign in the judiciary to prevent it from imposing its own subjective political and ideological desires. Rather it provides an objective understanding of the Constitution, free from the judge’s own subjective political perspectives.

“This theory says we should be tied to the views of what the framers meant when they put those words in,” Redish said. “But if I ever see an original-meaning advocate coming to a definition that happens to differ with his ideological preferences, I might take it seriously. What an amazing coincidence it is that it always comes out on their side.”

Non-textualism, associated with the left, is a theory based on techniques of textual deconstructionism that Redish says claims that the Constitution means whatever the interpreter wants it to mean.

But both approaches are obviously too flawed to be seriously considered as appropriate responses to the judiciary dilemma, said Redish.

“In looking over these alternatives, I have the emotive reaction of a Bears fan to a Packers-Vikings game, in the perfect hope that somehow both will lose,” he said. “Neither represents an adequate reconciliation of the competing needs and the competing interests.”

Redish proposes a theory calls controlled activism. This is the recognition of the need for candor in which judges make laws. He said that the textual meaning of the Constitution should guide judges, but historical evidence should not be considered because judges are not historians and the data can so easily be manipulated to fit preconceived notions.

“Whatever flaws my notion has, I can take comfort in the fact that it cannot be worse than the two existing theories,” he said. “What isn’t allowed in controlled activism is viewing the Constitution as simply an extension of your own political agenda. If my constitutional theories ever come to a conclusion that I politically approve of, I immediately go back and rethink it to make sure I haven’t fudged.”

Controlled activism gets people away from the misguided focus of originalism and non-textualism. More importantly, Redish said, it is what democracy is about.

For a webcast of the lecture go to www.floridalawreview.com.

Redish’s accomplishments range far and wide. He received his AB in political science from the University of Pennsylvania and his JD magna cum laude from Harvard Law School. He has written more than 80 articles and 15 books and was recently listed in a study by William S. Hein & Co. as the 16th most cited legal scholar of all time. Redish has also appeared on the Today Show, ABC and NBC National News, CNN, Court TV, CSPAN and National Public Radio.

The Florida Law Review Dunwody Distinguished Lecture in Law series was established by the U.S. Sugar Corp. and the law firms of Dunwody, White and Landon, P.A., as well as Mershon, Sawyer, Johnston, Dunwody and Cole in honor of Elliot and Atwood Dunwody. The Dunwodys, graduates of the University of Florida College of Law, dedicated their lives to the legal profession. The series’ intent is to perpetuate the example set by these brothers by providing a forum in which renowned legal scholars can present new and challenging ideas.