Judical Activism

In all of the media frenzy over non-issues and personalities in the last national election, the most lasting historical effect of any President's administration was mostly overlooked. The choice of Justices to the US Supreme Court and Judges to the Circuit Courts of Appeal and the Federal District Courts have a profound effect on the lives of the population of the country. While the issue was largely overlooked, judicial activism is a constant danger to the make up of the government. It amounts to the judicial branch subverting the very document they are sworn to uphold and interpret.

When the founding fathers of the United States designed the mechanics of the government, they made the passing and changing of law difficult. To people desiring changes in the law, it can be frustrating to watch the sniping and deliberations which go into the passage of legislation. It has been famously said that “no one should see how sausages or laws are created”. It seems inefficient and more difficult than it needs to be. That is not coincidence. It was designed to be that way from the beginning and it is very intentional. At the time that the ratification of the United States Constitution was being debated, there was a lot of wariness of a strong central government and allowing the central government too much power. After all, the country had just fought a long and bloody war to get out from under a too powerful government which was not responsive to the needs of the people.

It was precisely because of the suspicion that central government which was too powerful would be subject to trends and to shifting political winds that the constitution was written the way it was. It takes deliberations in both the House of Representatives and the Senate separately, and then agreement between the two bodies before the bill being considered is even sent to the President. All of those steps were meant to ensure that fads and short-sighted trends were not constantly causing changes in law which were fickle and subject to whim. Political preferences in the United States are cyclical and the founding fathers knew that in order to have stability, the law must have some consistency.

Keeping those ideas in mind, the changes which are, by design, most difficult to make are changes in the constitution itself. A change to the United States Constitution requires involvement of all of the state governments and two-thirds of those governments must ratify the amendment. This is a Herculean task by any measurement. It is supposed to be. All of the articles of the constitution were hammered out in long debate and compromise in which all sides strenuously argued the merits. It is not something to be casually changed on a whim.

The constitution specifically delegates the power to create law to the legislative branch. The legislative branch is designed to be most representative of the governed population. Any idea without merit will not get through the scrutiny of the elected legislators because in short order they will be facing those same people asking to be re-elected. The country tends to be reluctant to wholesale radical change and so these processes allow progress to be generally very methodical with some notable exceptions. By definition, every constitutional amendment is a big change.

Liberal political thinkers got frustrated by their inability to pass legislation that agreed with their political views so they found a way to get around the constitution. They found activist judges. The idea is that they can find a judge who agrees with whatever interpretation of the law they want codified and they argue a case in front of the judge. The judge then rules that the law is only constitutional if it is rewritten the way the judge wants it. In that way, the legislature becomes powerless to change or adapt the law in any way other than the judge wants it.

There are a number of problems with this approach. The first is that the legislative branch is delegated the authority to create law specifically because they are accountable to the people in open elections. Federal judges are political appointees who, except in cases of malfeasance or criminal conduct, are accountable to no one. The second problem is that case law from one area of the country can be used as precedent in another part of the country. This allows creative and radical decisions by rogue judges to spread like malignancies across the country. It is a well documented phenomenon that liberal lawyers "shop" cases around until they find a favorable federal judge and try the case in that district or circuit. The third problem is that an isolated federal judge making a decision creating law removes the entire deliberative process installed in the constitution specifically to prevent trendy and whimsical changes in federal law.

A constitution which constantly changes shape like an amoeba and adapts without deliberation and debate and the input of the legislatures is no constitution. There is no stability and no consistency and besmirches the system of government on which our country’s very existence is based. Judges who create law are not interpreting law, as the constitution intended and specifically states, they are pseudo-monarchs creating law without accountability. The American Revolution was fought to divest this country of just such a system of government.