When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for judges to enforce the written constitution, even when doing so may strike the judge as pragmatically difficult, politically unpalatable, or even morally wrong. A judge who is properly engaged, in other words, is a judge who views her job as one of enforcing and preserving the written Constitution. This Article will explore the difference between judicial activism and judicial engagement by examining the Supreme Court’s evolutionary approach to individual rights. I hope to convince the reader that judges have strayed too far from the Constitution’s original meaning in the realm of individual rights, engaging in judicial activism rather than appropriate judicial engagement. Following this analysis, I will offer a plausible and familiar solution to the problem of activism — a blueprint, if you will, for getting our judges properly engaged in enforcing our written Constitution.
Elizabeth Price Foley,
Judicial Engagement, Written Constitutions, and the Value of Preservation: The Case of Individual Rights
, 19 Geo. Mason L. Rev. 909
Available at: https://ecollections.law.fiu.edu/faculty_publications/409