A Guest Post by Robert Weisberg on the Relationship Between “Actvism” and “Federalism”

Robert Weisberg, of Stanford Law School, offers a guest post:

Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the “activism” trope is more than the intelligence (or other virtues like rationality, sanity, or honesty) of those decrying it can bear. I would add a twist: the conflation of concerns about separation of powers and federalism. On the Bill O’Reilly show the night of the decision, Fox New jurisprude Megyn Kelly first offered a fairly generic denunciation of the decision as matter of constitutional jurisprudence. Then, when asked (by O’Reilly!) whether the decision at least merited respect under the principle of states’ rights (O’Reilly also noted that the state court was mostly Republican appointees), Kelly got agitated and fumed that states’ rights are not about the rights of state judges but the rights of the people. Whatever the mens rea of Ms. Kelly’s rant (see challenged virtues, above), it wonderfully illustrates the power and plasticity of the activism trope. And the focus on California is especially ironic. Here in the Golden State we have a ruling that may last just a few months, given the voters’ penchant for—indeed their addiction to—direct democracy. 

We do have an elected legislature here, but California voters love to do the legislative work themselves (both the restoration of the death penalty in the 1970s and the three-strikes law in the 1990s were passed the old-fashioned way in Sacramento but then got enhanced via initiative within one year), and the 50 percent rule applies to initiatives that change the Constitution as well. It is a state where the people seem quite willing to kick Supreme Court justices out of office (see Bird, Reynoso, Grodin over the death penalty in 1986) and, of course, find it easy to kick out a governor for no particular reason except dislike and mild buyers’ remorse. So in the separation-of-powers arena, the fourth branch of self-declared people’s sentiment seems quite able to take care of itself. 

Of course, we could also put the problem with this reading of states’ rights in more abstract terms, noting, for example, that the presence of both the Ninth and 10th Amendments in the federal Bill of Rights suggests that in 1791 there was a big difference seen between the autonomy of states and at least one, admittedly vague, version of a residual power of the people. The venerable provenance of federalism in the 18th century is a strange bedfellow to a concern over the phenomenon of ­judicial review—which was hardly on the minds of the Framers­, especially at the state level.

In any event, imagine that the D.C. gun ban had been enacted in a state; the U.S. Supreme Court had upheld it on broad collective rights grounds (contra the likely outcome in Heller ), and the state Supreme Court had then struck it down as a violation of the state’s right-to-bear-arms clause: Would the chance of that decision being denounced as activist by pro-gun groups have exceeded zero, or the chance of those groups forbearing from proclaiming it as a vindication of states’ rights less than 100 percent?