Robert Meyer
March 21, 2004
Judicial activism: mischief through the looking glass
By Robert Meyer

Once again this week, the "erudition" of a local editorial writer proved to be the catalyst for another opinion piece. Readers of the opinion page in my local paper were treated to the classic liberal spiel about the Constitution being a living, breathing document. I always wonder where they get that idea to begin with? But here is the quotation from this fellow: "The Constitution is a living document and must be allowed to be viewed by forward-thinking judges as such, for if it were a document to be seen in only a strict manner, African Americans would still be required to count only as three-fifths of a person."

Why are liberals always content to give the power of philosopher-kings to a small panel of black-robed lawyers, while seldom mentioning the ability to amend the Constitution under article V? Probably because the liberals have been making laws through the court for years, that they know would never be passed through legislation, or via the prescribed amendment procedure. They tend to make emotive arguments, which lead us to false conclusions, about the choices we have at our disposal to correct social injustices.

George Washington declared that there is but one legitimate way to change the Constitution: "If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Washington rightly understood that the tendencies of judicial fiat, don't necessarily certify that court decisions will move in a beneficial and morally progressive direction. For example, one may point to Brown v. The Board of Education, to say that good is caused by judicial activism. But then what about the Dred Scott decision? Was this decision as progressive as the Emancipation Proclamation or the 13th Amendment enacted ony a few years later? Or if you want something more recent; The Civil Rights Act of 1964. These were all legislative or executive processes, not judicial rulings. Why do liberals shun the legislative and constitutional processes, while they mockingly repeat mantras extolling "the will of the people, the will of the people"?

How about last summer's Lawrence decision, which virtually banned states from maintaining or establishing their own laws to uphold local codes of morality. Such can only be seen as "progressive" to the person who can ignore the invalidation of the 10th Amendment, which was the practical implication of that decision. We see this tyranny Washington spoke of manifested in certain state courts. The Massachusetts Constitution has existed over two-and-half centuries, yet four judges now see a right for homosexuals to marry, which never before was recognized or implied. Shouldn't the people decide? No way! How can they be trusted to know what is "right"? They are all too stupid anyway — besides it is more fun to go shopping for a sympathetic court.

We might ask what a forward-thinking judge is? Well, I will clue you in here. It is one who makes decisions that comport with your own ideology. The late Chief Justice Charles Evans Hughs once quipped that "...we are under a Constitution, but the Constitution is whatever the judges say it is." Holy separation of powers Batman! Who needs a Legislature when the courts can do all that, huh? How different from Madison who reasoned: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution" (my emphasis).

In his time Thomas Jefferson issued a stern reminder to Justice William Johnson: "on every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Funny how that principle generally describes the judicial philosophy of the presidential appointees — the ones the Democrats have thus far filibustered.

The great contemporary legal scholar Daniel Driesbach would approve of the above admonition. Driesbach asks what principles of interpretation will we apply to the Constitution, if not the jurisprudence of original intent. What would be the basis for determining on what standard we could ever approve an alternative methodology?

James Madison viewed the idea of judicial review, stemming from the Madison v. Marbury case, as a departure from the intended constitutional structure. "As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper." Madison had written in the Federalist Papers that the courts would be the weakest branch of government, because their powers were limited to applying the test of constitutional principles to the cases before them. He realized this new power might tempt them into a quasi-legislative role.

That is why this an entire cadre of people who say that we need to do this or that to get back to what the founders envisioned, yet approve of courts acting as a remedial Constitutional Convention, are placing a false blessing on their own ideological desires.

Too often the courts rule on issues that they have no jurisdiction over, because those issues are not addressed in Constitution itself. Those issues must be left to the federal Legislature and the law-making bodies on individuals states, in order to preserve the principle of the Tenth Amendment. What needs to stop is judges with specially tinted glasses, seeing the emanations of special rights between the lines of the Constitution.

The Court should not be the place of "Alice in Wonderland" serendipity, lest this free land descend into an oligarchy of black-robed oppressors.

© Robert Meyer

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

Click to enlarge

Robert Meyer

Robert Meyer is a hardy soul who hails from the Cheesehead country of the upper midwest... (more)

Subscribe

Receive future articles by Robert Meyer: Click here

Latest articles

 

Alan Keyes
Why de facto government (tyranny) is replacing the Constitution (Apr. 2015)

Stephen Stone
Will Obama be impeached now that Republicans control both houses of Congress? (Nov. 2014)

Cliff Kincaid
Mr. and Mrs. Clinton: Tear down that library

Matt C. Abbott
Tweets sink head of US bishops' news agency

Victor Sharpe
Hoisted by their own petard

Lloyd Marcus
Voting Cruz: Has God abandoned America?

Chuck Baldwin
A politically incorrect analysis of neoconism

Jim Kouri
CIA chief more concerned with Obamaism than protecting Americans: Critics

Michael Gaynor
Judge Masin cannot make Ted Cruz a natural born US citizen

Ellis Washington
Open letter to CUNY dean Sarah Bartlett

A.J. Castellitto
God, Cruz and Country

Cliff Kincaid
Cruz thwarts hostile takeover of the GOP

Gina Miller
Truth about MS Religious Freedom Protection Act

Susan D. Harris
It's the little things: Remembering Western Civilization
  More columns

Cartoons


Michael Ramirez
More cartoons

RSS feeds

News:
Columns:

Columnists

Matt C. Abbott
Chris Adamo
Russ J. Alan
Bonnie Alba
Jamie Freeze Baird
Chuck Baldwin
Kevin J. Banet
J. Matt Barber
. . .
[See more]

Sister sites