02 October 2003

Judicial Activism and Intellectual Property
Is that a sufficiently academic and off-putting title? I hope so; I suppose I could do better, but I would probably end up with something like "A Modest Proposal for Preventing the Poor Artists of America From Being a Burden to Their Parents or Country; and for Making Them Beneficial to the Public."

   There is an interesting colloquium over at Commentary's website querying a number of relatively prominent thinkers—skewed a bit toward the right, but given Commentary's own bias that is no surprise—on the general question of judicial activism. Or, at least, purporting to be on the general question of judicial activism; the questions asked are rather outcome-determinative:

  1. Have recent rulings by the Supreme Court subverted fundamental elements of our constitutional order? If so, exactly how grave is the situation, and is responsibility to be laid equally at the feet of liberal and conservative Justices?
  2. Controversial court decisions have been rationalized by appeals to an “emerging” democratic consensus or (as in Lawrence) to human-rights norms elsewhere in the world. Is there any legitimacy to this development? In deciding constitutional questions, are there circumstances in which the Supreme Court is justified in reaching beyond its own precedents and the Constitution itself?
  3. Do you see any merit in proposals to limit the power of the Court? More broadly, what (if anything) should be done to contain or roll back the imperial judiciary?
As any good scientist knows, the question asked often determines the answer. The unasked question—one that Alan Dershowitz sidled up to in his answer but nonetheless evaded—is deceptively simple.

Should American government attempt to create a homogeneous society, and what mechanisms may it legitimately use to accomplish its aim?

This question has its own assumptions; for example, it assumes that American society is not now homogeneous. Although I think the answer to that is pretty clear, I cannot deny that it underlies the question posed.

   One can argue that the Intellectual Property Clause (Article I, § 8, cl. 8) points the way. It authorizes Congress to enact legislation

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]

One assumption necessary to accept this as a valid aim is that progress of science and useful arts is best assured by maximizing the creation of writings and discoveries. However, there is no orthodoxy test, or "must be considered valuable by rigorous peer review" requirement; maximizing total volume, and hence diversity, is the goal. This is consistent with the First Amendment's broad scope.

   The next link is a little bit harder, and proceeds from an unprovable postulate. I firmly believe that diversity of ideas (whether writings, discoveries, or something else) depends upon diversity of underlying subcultures. Consider, for example, a relatively narrow subarea in music: nineteenth-century romanticism. (The operative word is "relatively.") Chopin's mazurkas and other dance music are intensely grounded in Polish folk tradition. Liszt borrowed Hungarian and Romanian folk tradition, in both rhapsodies and other works. Wagner… well, better left unsaid. And so on. The richness of the music of nineteenth-century romanticism (aside: yes, that is an awkward phrase, but it avoids "romantic"—a term that has been so grievously misused that I avoid it entirely) comes directly from its diversity. Even those unschooled in classical music can quickly distinguish among works by Chopin, Liszt, and Wagner.

   If one accepts that link, then the corollary becomes a bit clearer: that government must act to protect diversity, and therefore may not act to create a homogeneous society. The role of the courts within this conception then becomes much closer to John Hart Ely's "countermajoritarian principle"—that the role of the courts is to protect disempowered minorities from excesses perpetrated by empowered majorities, while still allowing empowered majorities to govern effectively—than to measurement of "judicial activism" or "judicial restraint." There will be times, such as the civil rights movement of the 1940s through 1970s, when a court must take steps that look "activist" in order to achieve this goal. Similarly, there will be times when a court must take steps that look "restrained" to achieve this goal, such as protection of a right established through judicial interpretation or other nonelective means against encroachment by an empowered majority; Lawrence v. Texas is an example of this function. (I think Lawrence was correctly decided, but the point is that "gay rights" have become established by means other than election of representatives who form an empowered majority, not the correctness of the decision.)

   This is not to say that I accept Posner's so-called "pragmatism" as a justification, either. Instead, the courts must be prepared to be unpopular, because their role is to act as a counterweight against de Tocqueville's aptly named "tyranny of the majority." At least in our conception of government they are. "Pragmatism" too often boils down to "the greatest good for the greatest number," which is precisely the opposite.

   One more step, and we are back to intellectual property again. A silenced, but otherwise protected, disempowered minority will remain a silenced, but otherwise protected, disempowered minority. Throughout human history, the arts have led politics; sometimes by years, sometimes by centuries. Even when contemporaneous, the arts are a necessary means of political communication. The dangers of nonideological totalitarianism, for example, did not become widely known to Americans until 1984 was published. Thus, a court system willing to be activist or restrained, as required by the facts in the dispute before it, is the best protection for societal diversity.

   I encourage those who believe that societal diversity is not a positive value to learn about Malthus and the concept of the "ecological niche." Or they, too, may well go the way of the dinosaur—which proved unable to adapt to changing environmental conditions not of their own creation. (Some creationists may hold that there never were any dinosaurs; if that includes you, just look at the carrier pigeon.) The one constant in the universe is change. Unless change becomes utterly predictable, diversity is the best way to ensure that at least part of a population survives change.