Judicial activism

The judiciary has been in the firing line of the American right for so-called judicial activism since the 1960s. It stands accused of "inventing" rights and of being an unelected branching supposedly usurping the power of the people's elected Congressmen. Though the judiciary was also criticized in the 1930s not sufficiently blocking FDR's New Deal programs. In other words, for not being "activist" enough.

Now it's increasingly in the crosshairs of the left, who accuse the judiciary of partisan politicking (Bush v. Gore) and of plotting to roll back previous court cases like Miranda v. Arizona and Roe v. Wade.

The US government has three branches:
the Congress (elected by the people)
the President (elected by electors who are chosen by state legislators) and the rest of the executive
the courts (nominated by president, confirmed by one branch of Congress)

The courts are the branch of government least accountable to the people, because they are nominated by a not-popularly-elected president (before I get a ton of spiteful responses, no American president is popularly elected). Judges can be confirmed with the support of less than 10% of those elected by the people to Congress.

The federal judiciary was designed this way by America's Founding Fathers (who some are quick to canonize) so as to innoculate judges from the political hysteria of the day. In other words, they weren't supposed to make decisions just because the majority of the people wanted a particular outcome.

[For the purposes of this essay, judges, the judiciary and the Constitution are all the federal versions unless otherwise noted]



THE DEFINED ROLE OF THE COURTS
Congress passes laws. The executive enforces laws (in theory). And the courts intrepret laws. That's the separation of powers.

In the case Marbury v. Madison, the Supreme Court asserted its prerogative of judicial review. That's to say, its power to determine if a piece of legislation conforms with the US Constitution.

This seems straightward enough. After all, the Constitution's Article III, Section 2, in defining the courts' role, begins: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.

So if the courts have the power to interpret the Constitution, why do they get a bum rap when they do exactly that?

The answer is that there are different schools of thought as to how judges (and the rest of us) should interpret the Constitution.



STRICT INTERPRETATION
Some believe in a strict, literal intrepretation of the Constitution. That's to say: the Constitution means exactly what it says. And only what it says. This is problematic since certain sections of the Constitution are intentionally vague. (And because the sheer quantity of subordinate clauses, qualifications, commas and semicolons)

For example, the 9th Amendment reads The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment was included because James Madison was concerned precisely about a strictly literal interpretation of the Bill of Rights. Madison was afraid that by specifically enumerating the rights contained in the first eight amendments, certain people would conclude that other rights, that had been assumed for generations, would suddenly disappear just because they weren't explicitly mentioned.

So the 9th Amendment basically says: any rights that have been long established are still around even though we don't mention it here. This is why nearly everyone accepts the right to privacy as one of our most fundamental rights.

However, a strict interpretation says that since the Constitution doesn't explicitly mention the right to privacy, it doesn't exist; would-be Supreme Court justice Robert Bork is a subscriber to this belief. Fortunately, most people realize that the right to privacy must exist because it is the foundation of almost all of the amendments contained in the Bill of Rights.


ORIGINAL INTENT
Another common school of thought is called original intent. This is a very straight-forward theory. Whatever the framers of the Constitution intended by a particular clause or amendment is what we must respect. This is a seducing approach. It's got the advantage of being simple and unchanging. The downside is that it's simple and it's unchanging.

This approach is based on the premise that whatever a bunch of guys thought was a good idea in 1787 must bind us until the end of time. They were, as a group, white, male, property owners who wanted to protect the system for all white, male property owners. This was actually a fairly enlightened approach for the world of the late 18th century. I respect them for what they believed when they believed it. But to suggest that we import wholesale and verbatim their ideas AND INTENT into the 21st century is idiotic.

The Declaration of Independence states that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Founding Fathers believed in this. Except when they said men, they meant MEN, not women. And as any male slave could tell you, they sure didn't mean all men.

Another example, the 5th Amendment begins: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury...

This is another place where the Founding Fathers' INTENT of the word 'person' doesn't correspond with the common 21st century understanding of the word. Black men weren't considered by the Founding Fathers to be whole people, as the 3/5 Compromise proved. And women were nothing at all.

Some of the Founding Fathers, such as John Jay (the first Chief Justice of the Supreme Court), wanted to deny Catholics the right to vote. Should we follow his intent?

Basically, according to Original Intent, constitutional rights should only apply to white, male, property owners. And perhaps only to non-Catholic white, male, property owners.



HOMOGENEOUS FOUNDERS?
And I'm not even convinced that it's even that simple to figure out what the Founding Fathers intended in all cases. They were hardly the homogenuous thinking group that popular myth suggests. They had serious, often bitter, disagreements.

The 1st Amendment (ratified in 1791) states: Congress shall make no law... abridging the freedom of speech, or of the press.

Yet in 1798, Congress passed the Sedition Act. The Sedition Act mandate a fine and imprisonment for any persons [who] shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States... as well as for any person shall write, print, utter. Or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.

The deliciously vague Sedition Act was signed into law by John Adams. But since John Adams is one of the canonized Founding Fathers, we must necessarily take his ideas as written in stone now and forever more. Or at least according to the original intent folks.



IS 'JUDICIAL ACTIVISM' REALLY A BAD THING?
Judges who declare laws unconstitutional are accused of judicial activism. Frankly, given the popular definition of "judicial activism," I don't see this as a bad thiing.

In fact, the anger should be directed at legislators who pass unconstitutional laws. If Congress passed only laws that respected the Constitution and the individual's constitutionally-guaranteed rights, then the judges wouldn't have to worry about this.

A recent US Supreme Court case declared Texas' anti-sodomy law unconstitutional. Critics said that it was yet another example of the courts usurping power from the people's representatives. In reality, it was the Texas legislature at fault. THEY were the ones who violated the constitution by with an egregious and unwarranted invasion of privacy. It was the LEGISLATORS who were engaing in a power grab at the expense of the people. The court merely told the legislature: hands off.

The US Supreme Court didn't invent the right of consenting adults to be left alone in the privacy of their own home; they merely restored a right that should never have been legally taken away in the first place.

If not for 'judicial activism,' public venues might still be segregated in some places. If not for 'judicial activism,' interracial marriage would probably still be illegal in some parts. If not for 'judicial activism,' the right to privacy have been continued to be denied.


IS 'JUDICIAL ACTIVISM' JUST A LIBERAL THING?
Judges "usurping" the role of the Congress is a charge often laid by conservatives. Yet, it's wrong to oversimplify as liberal judges versus conservative populists. Consider these two examples:

Shortly after Bill Clinton took office, Congress passed and Clinton signed a law making it a federal crime to possess weapons on school property. Perhaps a noble goal, said critics, but not something the federal government should be involved in. The Supreme Court agreed and struck down the law. Conservatives did not accuse the Court of judicial activism and "stealing" power from Congress.

During the early part of the Depression, the courts regularly ruled various New Deal programs to be an unconstitutional use of federal power. President Franklin Roosevelt threatened to expand the number of judges on the Court and stack it with judges favorable to his way of thinking. Eventually, the Supreme Court relented and stopped standing in the way of the New Deal programs. The Court was regularly vilified by conservatives for not blocking these programs. In other words, conservatives attacked the Court for... not being "activist" enough.


CONCLUSION
I can accept the argument, advanced by many libertarians, that the courts aren't zealous enough in safeguarding individual rights. But I don't accept the contention that the court shouldn't do this at all. If the courts can't declare a law unconstitutional, then the Congress can pass any law it wants regardless of constitutional safeguards (see the Patriot Act). If Congress can run amock and there's no neutral referee to tell them to stop, then the Constitution becomes meaningless.