The United States Constitution (1787) created a distinct form of government. The Constitution created a government with three branches with a system of checks and balances to insure that tyranny and despotism would never exist in America. Since each branch would have its own specific duties and powers, no one branch would ever become too powerful. George Washington warned the nation in on September 19, 1796 in his Farewell Address about the possibility of government by the few-oligarchy. He stated,
It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confirm themselves within their respective Constitutional spheres; avoiding the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position….If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way 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. (11)
Therefore, George Washington prophesied correctly. One branch, the Supreme Court has taken upon itself to do the work of the Congress, the Presidency, and the Supreme Court. It has usurped the powers and duties of the other branches, which is unconstitutional. Ironically, the Supreme Court was formed to declare laws to be constitutional or unconstitutional. But, in reality, the judicial activism approach that it is pursuing should be declared unconstitutional itself.
What is judicial activism? “‘Judicial activism’ is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and ‘legislate’ from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.” (1) In reality, judicial restraint should be the method used by the courts of America. Judicial restraint, according to North Carolina Supreme Court Justice Paul Newby, encourages the “rule of law” to be followed. It involves the following of all legal precedents. It also stresses that the courts must limit their activities in America’s government. The personal opinions of judges threaten America’s constitutional government. It is contrary to the system of checks and balances and the separation of powers established in the United States Constitution, too. Therefore, based on Justice Newby’s opinion,
It is the judiciary's role to interpret and apply the law as intended by the drafters. Judges should not view themselves as super-legislators who create, revise or overturn laws at will. No one died and made a judge king. Judicial activism leads to unchecked power in the judiciary, thwarting the rule of the people and undermining self-government. It smacks of elitism and erodes public confidence in the legal system (i.e., is there law or only the changing opinions of judges?). Our system of law grew out of the English tradition which held that the law, not the king, was supreme. An activist judiciary, in effect, sets itself up as an all-powerful king able to disregard the law and the will of the people. (2)
Also, since judges are appointed for life, they do not have the same accountability factor that Congressmen have who are elected for specific time periods. Therefore, it is even more important that candidate’s judgeships perform only their constitutionally-directed duties.
Thomas Jefferson in 1820 expressed his disdain for the negative possibilities inherent in America’s judicial system. He argued,
The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. This will lay all things at their feet . . . If they do, then . . . I will say, that “against this every man should raise his voice,” and more, should uplift his arm. (10)
Also, according to Thomas Jefferson, there were several elements involved with the possibility of the judiciary becoming too powerful in America. They were “the present state of the unconstitutionality of legislation, the usurpation of law in constitutional matters, the almost total usurpation of the powers and rights of state government by the federal government, the decline in the morality and ethics of the nation, runaway injustice, and the rise of the criminal and corrupt factions of society. (10)
He also stated in 1821, “The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.” Therefore, based on Justice Paul Newby’s interpretation of Jefferson’s quote, a judicial activist court would create havoc for the United States government and society. Justice Newby said,
The federal judiciary: an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated. (2)
Sherlock Holmes made a statement in The Final Chapter that relates to the problem of judicial activism. He said, “I think that you know me well enough, Watson, to understand that I am by no means a nervous man. At the same time, it is stupidity rather than courage to refuse to recognize danger when it is close upon you.” (3) Such is the case with judicial activism. If left unattended to by the President and Congress, the Supreme Court and its judicial activists could change the total makeup of the United States government. It could change America’s republic into an oligarchy with a few unelected judges making and enforcing the laws of the land. Henceforth, the rule of the few would replace the elected representation of the masses. (3) But, what are the characteristics of activist judges? Activist judges have the following characteristics:
1. Interpreting a state or national Constitution broadly to include personal liberties not explicitly enumerated within the document.
2. Overturning an existing law.
3. Establishing a previously unarticulated legal principle or right.
4. Ruling contrary to popular opinion. (4)
Also, most activist judges base their decisions on their own personal opinion, regardless of their political party. Activist judges are criticized for their liberal viewpoints. They are blamed for subverting the democratic government in America, too. Also, they are violating the principles of popular sovereignty. Some other criticisms of judicial activism are:
1. The unpredictability of decisions by an activist court: people may not be able to act legally if the law's meaning changes over time.
2. The sworn allegiance of judges to uphold the constitution: critics of activist judges argue that such judges violate their oath when they reinterpret the constitution.
3. Separation of powers: judges are empowered to interpret existing laws and policies, not to create new ones.
4. Alternative mechanisms for change: the constitution contains a mechanism (Article V) for adding amendments. Some argue that it is better to amend the text of the constitution rather than to change the meaning of the existing text. (4)
As a result of judicial activism, judges basically ignore the U.S. Constitution. They deny the existence of any Constitutional limits on them. Their jurisdiction even extends into the homes of private citizens. Thus, Big Brother through the Supreme Court is becoming more powerful each day. They are rapidly taking control of state and local governments by eliminating their ability to govern. Sadly, activist judges make decisions that remove constitutionally guaranteed freedoms from the grasp of private citizens. Therefore, the Constitution is becoming a useless piece of paper at a time when America is extremely vulnerable to those who would destroy America from within. (6)
Obviously, activist judges have caused much misery for the American people. According to Judge Robert Bork, the Supreme Court candidate in 1987 who was not appointed due to a liberal backlash,
Activist judges are continually attempting to banish the traditional values and freedoms that were given to Americans by their Founding Fathers. Since they cannot persuade Congress or the American public to accept their socialistic beliefs, they have tried to usurp powers from the other branches of government. This coup d’etat was not led by military men but by men in black robes. Thus, the rule of America has become the rule of judges. Constitutional law has been replaced many times by the will of renegade judges.
Also, as stated by Judge Bork, “the suffocating vulgarity of popular culture is in large measure the work of the Court because it repeatedly defeated the people's attempts to contain and minimize it.” (8) Therefore, the Courts of the United States have lost the vision of what their true mission is. Today, activist judges have forgotten the oath that they took to uphold the principles of the U.S. Constitution. Instead, their new mission has turned into a personal vendetta to force a new lifestyle on the American people. Their attitude toward the American people has evolved into an attitude of defiance. They have labeled the American people as “a barbarian majority motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality, and the like.” Basically, activist judges have envisioned a new America controlled by the dictates of the judiciary. (8)
However, what is hindering the President and Congress from stopping judicial activism? The first problem is that the Supreme Court has not become so powerful over night. During the twentieth century, it has progressively gained its unconstitutional power. In fact, the Supreme Court has basically become another federal government with unelected leaders. As a result, judicial enactment of laws has become the rule of the nation. American citizens have been forced to become subservient to the Supreme Court’s will. (6)
The second problem with stopping judicial activism deals with how our government operates in reality, not necessarily the way Americans have learned in school. According to President Franklin D. Roosevelt, “The real truth of the matter is, as you and I know that a financial element in the larger centers has owned the Government ever since the days of Andrew Jackson....” (6) Based on Roosevelt’s opinion,
The United States government is actually working for the benefit of those mega-corporations who control the money in our nation, not the American voters. However, these corporate giants gradually accepted socialism as their basic ideological tenet. Socialism would give them the ability to gain great wealth and even more control of the government. But, what procedure could be used by the federal government to insure that America becomes a socialistic nation. Of course, it would have to be done gradually and inconspicuously. The ultimate solution was to give the Supreme Court free reign to legislate and execute laws in America. The Supreme Court would need to desecrate all the social institutions in the nation-Christianity, marriage, family, community standards, and individual freedom of action. Inevitably, the Supreme Court and its judicial activism have been very successful in achieving its ordained objective. Therefore, since the members of the Supreme Court are basically untouchable as far as being removed from office, they take a tremendous amount of political heat off the President and Congress. Thus, the other two branches of government can work in its clandestine efforts to bring about a quiet revolution in America. (6)
America’s quiet socialistic revolution can be seen in the judicial tyranny set forth in many court rulings throughout the nation, especially those dealing with the consent of the governed. Some of the more prominent rulings are:
1. Prevented California from denying public benefits, such as welfare to illegal aliens.
2. Prevented California from abolishing affirmative action.
3. Prevented Colorado businesses from refusing to do business with homosexuals.
4. Refused to make burning the U.S. flag a crime.
5. Mandated forced school busing.
6. Banned prayer and Bible reading in public schools.
7. Prohibited the public display of religious symbols.
8. Ordered the release of convicted criminals.
9. Forced all-male schools to admit women.
10. Legalized abortion in 50 states.
11. Taking private property from American citizens (Eminent Domain)
As seen by the courts actions in these cases, it is obvious that liberal, judicial activism is a threat to American conservatism. (7)
1. Hausknecht, Bruce. “Q&A-Judicial Activism” Focus on Social Issues. 16 August 2005.