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George Washington’s Opinion of Judicial Activism: He Was Correct! (Part II)
by Carl Parnell 
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Recently, one of the most frightening attacks by the judicial activists was the taking of private property by state and local governments. This is the right of eminent domain. It gives state governments the right to take private property for public use. However, public use usually refers to building new highways or providing new utilities in a local area. But, in recent years, states have misused their right of eminent domain. In fact, they are taking land from individual citizens and giving it to real estate developers. (12) But, to make things worse, the United States Supreme Court and its activist judges voted 5-4 on June 23, 2005 to permit local governments to seize individual’s property for private economic development. Therefore, once again the judicial branch of America is taking away more of the freedoms that have made the United States a great nation. (13)

According to Dan Berliner and Scott Bullock, attorneys for The Institute for Justice, a non-profit libertarian organization, it is unconstitutional for the government to take private property in this manner. Ms. Berliner stated, “This is a nationwide epidemic.” (12) Mr. Bullock said, “It is fundamentally wrong, and contrary to the Constitution for the government to take property from one private owner, and hand it over to another private owner, just because the government thinks that person is going to make more productive use of the land.” (12) Dana Berliner also stated, “Everyone knows that property can be taken for a road. But nobody thinks that property can be taken to give it to their neighbor or the large business down the street for their economic benefit.” (12)

According to Jeff Jacoby, “the final passage in the Fifth Amendment is short and to the point: ‘Nor shall private property be taken for public use without just compensation.’ Like the rest of the Bill of Rights, that provision was intended by its authors to keep Americans free by shielding them from unbridled government force.” (14) He also said, “Naturally, governments and property owners wrangle all the time over how much compensation is ‘just.’ But the meaning of ‘public use’ is clear, isn't it? The state can take private property to make way for roads, post offices, prisons -- assets that will be owned and used by the public. That is what the Constitution's framers meant by ‘public use’ and it is doubtless what most Americans think it should mean.” (14)

But, according to Mr. Jacoby, “The despotic power . . . of taking private property when state necessity requires, exists in every government. But the state must not exercise that power ‘except in urgent cases.’ The justices could not imagine a situation in which the necessity of a state can be of such a nature as to authorize or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen. . . . Where is the security, where the inviolability of property, if the legislature . . . can take land from one citizen, who acquired it legally, and vest it in another?” (14)

Another grave attack by judicial activism occurred in Florida in March 2005. The federal court system permitted Terri Schiavo who was in a vegetative state for over ten years to be taken off her feeding tube. Of course, she died in about two weeks. This was another judicial intervention that should not have happened. Throughout the United States, many groups fought to preserve her left, except the judiciary. Since Terri was a Catholic, Pope John Paul spoke repeatedly in her defense. However, he was not successful. But, this act of euthanasia supported by the federal court system was a kiss of death for older people, terminally ill people, and disabled people.

According to Matt Abbott, a columnist for RenewAmerica.US,

Those who fail to understand history are doomed to repeat its mistakes. This mistake is all too reminiscent of German eugenics in 1933, as well as the politics of abortion initiated by Roe vs. Wade in 1973. In our collective arrogance, we as a society refuse to learn from these mistakes. Thus we endanger the ten percent of our population with special needs. And if we may draw a lesson from modern history, what begins as reckless endangerment will soon entrench itself as social obligation. (15)

Therefore, the American public must fight against the insensitive actions of the federal court system. If the American people don’t defend the “right to life” now, judicial activism could become the precursor to some type of socialistic, communistic, or Neo-Nazi doctrine taking over of America. (15) Therefore, the High Court has gone too far in its use of its judicial powers, especially when it affects the right to own private property and the right to life.

What can be done to return the Constitution to its glory? First, the judicial branch must renew its pledge to uphold the doctrines infused into the Constitution of the United States. Second, the system of checks and balances must be enforced by all three branches of government as stated in the Constitution. Third, the American public must demand that Supreme Court judges know their constitutional duties and jurisdictions in the federal government. Fourth, the American public must demand that all appointed Supreme Court judges make their decisions based on the dictates of the Constitution not their personal opinions. (7)
If Congress would limit the appellate jurisdiction of the Supreme Court, it could curtail the Court’s usurpation of the powers of the other branches. As stated in Article II, section 2 of the Constitution, “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned [in the first part of the section], the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Thus, Congress could check the Supreme Court by:

1. Enacting laws that would prevent the Supreme Court from having jurisdiction in certain specific areas such as abortion, school prayer, or civil rights

2. Enacting a law that would deny the Supreme Court jurisdiction in cases involving the Bill of Rights and claims against states.

3. Abolishing or limiting the jurisdictions of lower federal courts since Congress created them.

4. Impeaching judges and justices that rule contrary to the Constitution.

Ultimately, Congress could stop the intrusion of the Supreme Court into matters out of its jurisdiction. Congress must commit itself to constitutional liberties and check the onslaught of judicial activism. (7)

The Presidency should do its part to fight judicial activism, too. In January 2004, President Bush blamed activist judges for their attacks on traditional values. He advocated that Americans should challenge the improper rulings of judges who mandate “their arbitrary will” by court order “without regard for the will of the people and their elected representatives.” President Bush backed efforts to eliminate the actions of judges who are trying to destroy the sacred values of America such as the Pledge of Allegiance and the Ten Commandments. He favored the use of the legitimate “constitutional process” as the method to stop judicial activism. (8)

What can the American people do themselves to stop activist judges from becoming the dominant branch of government? Since judicial activism has become an ethical problem for those who swear to defend the Constitution, the citizens of the United States should lobby for their elected representatives to take action immediately to stop judicial activism. Too many legal problems are being caused by the uncertainty of the interpretation of laws by the judiciary. Also, many new laws legislated by the courts have not been based on merit but rather on other personal criteria of the judges. This has been the reason for the concern of the American public. Also, this has been the reason that stopping judicial activism has become a top priority in the nation. (11)

But, what action can the general public and their representatives take? One such action would be the impeachment process. In fact, this is the action advocated by America’s Founding Fathers. According to Professor Raoul Berger,

Impeachment was created precisely because some actions for which public officials should be removed from office are not covered by the criminal law. The phrase ‘high crimes and misdemeanors’ already had 400-year-old roots in English common law when the framers placed it in the U.S. Constitution. English judges were impeached for misuse of their official position or power, mal-administration, unconstitutional or extrajudicial opinions, misinterpreting the law, and encroaching on the power of the legislature. (9)

Therefore, the writers of the Constitution, such as George Mason and James Madison, felt that impeachment was suitable for anyone who tried to misinterpret the Constitution for personal reasons. However, the threat of impeachment has not been successful as a deterrent against judicial activism. The only meaningful manner in which to stop judicial activism would be for citizens to ensure that their legislators approve well-qualified judges. Then the appointed judges that hand out decisions in the United States would ultimately be true to their oath to abide by and defend the Constitution of the United States. (11)

Judicial activism has caused much turmoil in America’s legal system. It has been responsible for laws that were based more on personal ideologies than on the Constitution, the supreme law of the land. Many Americans, especially conservatives, are fighting with all their might to prevent any more activist attacks against the moral fiber of the United States. Activist judges are changing the very governmental makeup of America. Socialistic tendencies are replacing the beliefs of the writers of the Constitution. Minority rights have replaced the rights of the majority. Most Christian tenets have been removed from the public arena. Special interest groups and so-called defenders of America’s freedoms are winning many court battles that are denying Americans their Constitutional rights. Activist judges are failing to keep their oath of office. In stead, they are promoting agendas that are anti-religion and anti-American. The Founding Fathers would demand that all Americans fight the tyranny that exists in the judiciary. Judicial activism must go and it must go now. If it is not forced to cease and desist soon, the American government and culture as it is known now would become unrecognizable in the next fifty years. Therefore, judicial activism and the subversion of the United States Constitution must be checked now and forever more.


1. Hausknecht, Bruce. “Q&A-Judicial Activism” Focus on Social Issues. 16 August 2005.

2. Cox, Judson. “Even Judges Oppose Judicial Activism” Renew America. 17 August 2005.

3. Melton, Brian. “Triple Threat: Judicial Activism, One World Government, and American Apathy” ChronWatch. 18 August 2005.

4. “Judicial Activism: Definition, and Much More” The American Heritage Dictionary. 19 August 2005.

5. Peterson, Douglas. “Key Quotes on America’s Judeo Christian Heritage” America’s Christian Heritage. 19 August 2005.

6. Crane, Mike. “Judicial Activism Continues Full Speed Ahead” The Southern Party of Georgia. 20 August 2005.

7. Francis, Samuel. “Judicial Tyranny” The New American. 20 August 2005.

8. Schlafly, Phyllis. “Stopping the Mischief of Activist Judges” Eagle Forum. 21 August 2005.

9. Jipping, Thomas L. “Impeachment Is Cure for Judicial Activism” The Hill. 23 August 2005. (Reprinted from IMPRIMIS, Hillsdale College, www.hillsdale.edu)

10. Boot, Max. “Out of Order-Arrogance, Corruption, and Incompetences on the Bench” Barefoots World. 24 August 2005.

11.Tetreault, Paul, Jr. “Judicial Activism from the Viewpoint of America’s Founding Principles.” Citizen Soldier. 24 August 2005.

12. “Eminent Domain: Being Abused?” CBS News. 25 August 2005.

13. “High Court OKs Personal Property Seizure” CNN. 25 August 2005.

14. Jacoby, Jeff. “The Abusers of Eminent Domain” Townhall. 26 August 2005.

15. Abbott, Matt C. “Is Terri Schiavo the Roe v. Wade of Our Generation?” Renew America. 28 August 2005.

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