November 19, 2003

What's a Libertarian to Do?

In previous comments, I've been told that - as a libertarian-leaning individual - I should be against judicial activism. Judicial activism is, from my experience, generally what someone calls a court's decision when it upsets them.

But I'm at a bit of a loss as to why I should be averse to judicial activism in a case such as the Massachusetts gay marriage brouhaha. When the executive (to a lesser degree) and the legislative branch (always too happy to trample on the minority in favor of the majority) fail to protect the equality of the individual under the law, to where can we turn?

I refuse to endorse the legislative process as a respect-deserving tool of the will of the people when the will of the people is directly contrary to one's constitutional rights (or, perhaps, even with regard to rights that are not specifically enumerated). And when a court's interpretation of a law also runs counter to my view of said rights, I will not be sad when an interpretation I consider proper comes along, no matter how long the offensive interpretation stood.

Judicial activism's proper use is as a tool against the tyranny of the majority. In this case, the tool has been properly used. For me, this entire issue is not a subject in which the government should be involved anyway except from the view of enforcing contracts - but since the state has made it their business, I won't be displeased that they have ruled in favor of the rights of the individual.

Granted, allowing judicial activism does open the door for abuse when new rights-violating interpretations come along, but I would rather risk that and deal with each instance as needed rather than blindly proclaim that "the people have spoken, that is that, and rights be damned!"

That's a bit of a ramble up there, written off the top of my head, but oh well. Do a Google search for "libertarian" and "judicial activism" and you're bound to find someone more eloquent and well-versed.

Update: Andrew Olmsted gives his thoughts.