Right to the Point (7/23/09)

Judicial activism — not in the Constitution

July 23, 2009

By Mike Benevento

Last week’s Senate committee hearings on Sonia Sotomayor’s nomination to the Supreme Court brought to the forefront the judiciary’s role in making, interpreting and enforcing laws. Fulfilling its constitutional duties, the Senate must advise and consent to President Barack Obama’s judicial appointments. Given the Senate’s makeup, Sotomayor’s confirmation is by most accounts a foregone conclusion.

The U.S. Constitution separates powers to make, interpret and enforce laws between the three branches of the federal government. The legislative branch’s duty is to make all laws. The executive branch — led by the president — signs bills into law. The president may veto bills, but a two-thirds majority of Congress can override the veto. Additionally, the executive branch is charged with faithfully executing and enforcing all laws of the United States.

The Founding Fathers designed the judicial branch as the government’s weakest branch. Essentially, the judiciary’s role is to determine the constitutionality of laws. Thus, the judicial system’s power was intentionally limited.

The concept is for impartial judges to review the facts and apply the law during disputes. If the judiciary finds a law to be unconstitutional, it is supposed to strike down the offending provision — leaving all corrections to Congress. That is because only the legislative branch has the power to create, modify and repeal laws.

The Constitution does not authorize unelected judges to overrule policies and laws of the elected branches of government, even if they personally object to them. Legislating from the bench usurps the two other branches’ power — undermining democracy and the rule of law.

Much to the chagrin of many Constitutionalists, there is an increasing tendency for judges to make decisions by not adhering strictly to the letter and intent of the Constitution. Judicial activism is defined as judges not interpreting the law in an unbiased manner, but ruling based on their personal beliefs.

Bradley Canon, professor of Political Science at the University of Kentucky, described actions activist judges may take. These include overturning policies adopted through the democratic process or establishing policy itself, as opposed to leaving discretion to the other branches. Activists may alter previous decisions, doctrines or constitutional interpretations. In addition, they may interpret constitutional provisions contrary to the drafter’s clear intentions or contrary to the clear implications of the provision’s language.

Although created as the weakest branch of government, the judiciary has evolved into the strongest. So much so, that Congress and the president often appear helpless to override judicial decisions. When judges decide cases based on their personal views rather than on the law and the facts, the democratic process erodes.

The framers knew the Constitution would need to change over time. When it was written, the Internet, weapons of mass destruction, international terrorism, space travel and even the automobile were future phenomena. Therefore, steps to amend (i.e., change) the Constitution were enumerated. Amending the Constitution is not easy, but it has been done 27 times.

Since the Constitution must progress over time, many people view it as a living, breathing document. It should change to keep up with the times, taking into account new technologies and changes in cultural norms. While there is no doubt the Constitution should evolve, for many the question is how to do it.

Judicial activism advocates cite the amendment process as being too slow and not very adaptive. They argue that the judiciary can revise and grow the Constitution more efficiently. While that may be true, when judges rewrite the Constitution as they deem fit, they remove the legislative branch from the process. When that happens, unaccountable judges end up making the rules, rather than duly-elected representatives.

The most criticized example of judicial activism was the Supreme Court’s Roe v. Wade decision, which gave women the right to an abortion. The 1973 case legalized abortion for any reason, up until the point the fetus becomes viable. The judgment’s effects have been far-reaching: According to the pro-choice Guttmacher Institute, one in three American women has an abortion during her lifetime.

To justify its decision, the Supreme Court cited a woman’s right to privacy under the Constitution’s due process clause. Since the clause does not explicitly state this privacy right, many critics of judicial activism claim that the justices simply invented it. Thus, the court in effect changed the Constitution — rather than interpreted it — to fit its desires.

As reported by the National Right to Life organization, since Roe v. Wade, more than 49.5 million abortions have been performed in the United States. That means that almost 50 million potential lives have been ended — abetted by an activist judiciary.

Michael Benevento is a former Air Force fighter jet weapon systems officer. He has a bachelor’s degree in Military History and a master’s in International Relations. Mike resides in Williston with his wife Kristine and their two sons, Matthew and Calvin.