Time: Thu Jul 17 07:09:39 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id HAA22592 for [address in tool bar]; Thu, 17 Jul 1997 07:06:57 -0700 (MST) by usr04.primenet.com (8.8.5/8.8.5) with SMTP id HAA16875; Thu, 17 Jul 1997 07:05:34 -0700 (MST) Date: Thu, 17 Jul 1997 07:05:07 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Arresting Judicial Activism (fwd) <snip> > >Arresting Judicial Activism > >Dr. Mickey Craig >Hillsdale College >Advisor to Lincoln Heritage Institute > > > In his book, The Tempting of America (published in 1990), Robert Bork >observed that "the people and their democratic institutions are, for all >immediate practical purposes, helpless before the authority wielded by >judges." More recently, in the November 1996 edition of 'First Things,' >Bork >reported that the brazenness of judges has only gotten worse: "This last >term of the Supreme Court brought home to us with fresh clarity what it >means >to be ruled by an oligarchy. The most important moral, political, and >cultural decisions affecting our lives are steadily being removed from >democratic control." Indeed, Republicans, and especially conservative >Republicans, have become increasingly frustrated by the actions of judges >in >thwarting the will of the people as expressed in elections and as >expressed >by their representatives in Congress and state legislatures. While the >role >of the judiciary in our Constitutional system has often been occasion for >controversy, in recent years the decisions of judges have lead to a >crescendo >for action to rein in the judges by various reforms. This concern has >taken >on an increasing urgency among conservatives with Bill Clinton's >reelection. > > Clinton had appointed 202 of 837 federal judges as of the end of his >first >term and most likely will have appointed over half of the federal >judiciary, >if he serves out his term. > > Where there's smoke there must be fire. This brouhaha emerges from a >long >train of abuses by activist judges claiming judicial supremacy. The >general >complaint is that judges are making the law rather than simply >interpreting >or applying the law. Under the original Constitution, public policy was >to >be made by the elected representatives in the legislatures, the execution >of >the law was left to the President or the Governor, and judges had the >modest >task of adjudicating disputes at law and on rare occasions to review >whether >a statute contradicts the Constitution. Judges were never expected to be >makers of public policy. But today judges not only routinely make public >policy but, the charge continues, judges are enacting a left wing partisan >agenda which cannot win elections with voters in a conservative mood. >This >long train of abuses by activist judges includes the following: 1)judges >have struck down numerous referenda and initiative enacted by the people, >most recently the California Civil Rights Initiative and term limits for >state legislators in California; 2) judges in Hawaii are in the process of >trying to make same-sex marriage morally equivalent to heterosexual >marriage. > 3)judges find in penumbras and emanations a right to abortion or >infanticide; 4)judges have excluded religion from public life, i.e., >expelled >god from public schools and the public square; 5)judges have enacted >taxes, >i.e., taxation without representation; 6)judges have released violent >criminals; 7)judges have imposed preferences and quotas; 8)judges have >perverted the right of free speech to the point of making the various >forms >of pornography absolute while limiting political speech, especially in >campaigns; 9)judges have created a right to welfare assistance; 10)judges >have weakened criminal procedures; 11)judges take over, i.e., administer, >school systems; 12)judges take over, i.e., administer, prison systems; > 13)In the 1980s a judge imposed fines on city council members in >Yonkers, >New York for refusing to vote for legislation which the judge had ordered; >14)judges order that children of illegal aliens receive schooling at >taxpayer >expense. Like the Energizer Bunny, the list of abuses could go on and on >and >on. Whether through tortuous interpretations of the Commerce Clause, the >Incorporation Doctrine or the Equal Protection Clause, courts have usurped >the powers of the legislative and executive branches and have increasingly >monitored and regulated every aspect of our lives, virtually obliterating >the >separation of powers, federalism, and the distinction--essential to the >idea >of limited government--between public and private life. > > In response to these outrages, conservatives have proposed a number of >reforms. The more radical proposals include a Constitutional Amendment to >limit the terms of federal judges to ten years; a more active role by >Congress in restricting the jurisdiction of the courts; subject appellate >and district court judges to voter recall; subject Supreme Court >decisions to >voter referenda. Others are considering legislation which would make >activism an impeachable offense. In addition, some argue that the Senate >should withhold confirmation of any judicial candidate who does not show >an >understanding of the proper role of a judge in the Constitutional system. > > Senator Orrin Hatch, Chairman of the Senate Judiciary Committee, has >announced that the American Bar Association will no longer have any >official >role in evaluating prospective judges. House Judiciary Committee >Chairman, >Henry Hyde, will consider proposals which would prevent judges from >enacting >taxes; require a three judge panel to preside over challenges to a voter >referendum; and allow each side in a law-suit to disqualify one judge. > > What then is the proper role of a judge in the American Constitutional >system? The proper role of the judge is perhaps best seen in the famous >case >of Marbury v. Madison handed down in 1803. This case was the first >instance >in which the Supreme Court declared an act of Congress unconstitutional. > A >close look at the case demonstrates how Chief Justice Marshall's opinion >regarding judicial review is fundamentally different from the judicial >activism or judicial supremacy of contemporary judges. > > In Marbury v. Madison, Chief Justice Marshall makes two important >arguments. > > The first involved the power of judicial review, the second involved the >limit or scope of judicial power in respect to political questions. The >idea >of judicial review derives from the idea that the written Constitution is >fundamental law. The institutions created by the Constitution, i.e., the >Congress, the Presidency, and the Courts are inferior to and are bound by >the >Constitution. In other words, Constitutional Law is superior to statute >law. > > Statutes must conform to the outlines laid out in the Constitution. As >Judge Clifford Taylor of the Michigan State Court of Appeals has argued: >the >power of judicial review "derives from the necessity to decide a case or >controversy in which one party is relying on the law and the other party >is >relying on the Constitution and where the law and Constitution are in >conflict." Statutes are made by majorities in Congress, Congress derives >its >authority from the Constitution, thus the subordinate power of Congress >should not do anything which violates the superior power of the >Constitution. > > The textual basis for the power of judicial review is derived from the >Supremacy Clause in Article VI of the Constitution, coupled with the power >expressed in Article III, section 2, clause 1 of the Constitution which >states that "The judicial power shall extend to all cases, in Law and >Equity, >arising under this Constitution, the Laws of the United States, and >Treaties >made, or which shall be made, under their Authority;". The Supreme Court >serves (or should serve) as an impartial umpire which reviews statutes to >determine whether they violate the Constitution. For the Founding >Fathers, >this power of judicial review was very narrowly conceived. For John >Marshall, the power of judicial review was a device to protect the >independence of the judiciary from the encroachments of the other >branches, >especially the legislature. Judicial review did not mean judicial >supremacy. > > Judicial Review was a recognition of the supremacy of the Constitution. >The >striking thing about Marbury v. Madison is that Marshall argued that the >Congress in the Judiciary Act of 1789 had unconstitutionally expanded the >power of the Court. The Founding Fathers believed that each department of >government retained final say over matters which fell exclusively within >its >jurisdiction. James Madison, echoing Thomas Jefferson, said no one >department had greater power than any other to mark out the limits of the >powers of the other departments. Marshall followed this logic in Marbury >, >by declaring that Congress had unconstitutionally expanded the original >jurisdiction of the Supreme Court. Marshall did not intend to make the >Court >arbiter of disputes outside its jurisdiction. In other words, Marshall >did >not use judicial review to establish judicial supremacy. > > The second important argument in Marbury v. Madison is often overlooked. > > In Marbury, Marshall makes a distinction between what he calls political >questions and legal questions. Marshall did establish in Marbury that >the >sphere of judicial review was the protection of individual rights under >the >law. At the same time, Marshall had explicitly shown the limited scope of >judicial review by recognizing a sphere of executive power beyond the >scope >of judicial review in which the president was answerable only to his >conscience and the political process. Marshall argued that there were >some >acts of the president which were beyond the jurisdiction of the Court and >those he denoted as political questions. As Constitutional Historian >Herman >Belz has argued: "Distinguishing between law and politics, the >departmental >theory held that politico-constitutional questions were for the political >branches to decide, and legal-juridical questions for the judiciary." >This >meant that where the Constitution is silent or ambiguous the Court should >defer to the will of the legislature and executive as expressed in statute >law. A political question is a matter which is properly decided by those >who >are accountable to the voters. Underlying this whole argument is the >notion, >which was foundational to the Founding generation, that the rule of law >can >be the embodiment of procedures and rules which reflect an understanding >of >objective principles of justice. The judiciary's role in this system is >to >be the impartial umpire of disputes at law. > > As late as 1877, this understanding of the limited role of judicial >review >was still recognized by the Supreme Court. In Munn v. Illinois (1877), >Chief >Justice Morrison R. Waite would write that: "'It was the proper function >of >the judiciary to determine whether the power in question was a legitimate >constitutional power. If it was, the manner or extent of its exercise >was a >political question beyond the competence of the judiciary.' ... Waite >acknowledged that this power was subject to abuse. But he asserted that >for >protection against legislative abuse the people must turn to the polls, >rather than the courts." > > Beginning in the 1890s, the Courts began to expand their role and began >to >make policy. As Belz has noted, in the 1890s the Supreme Court no longer >confined itself to the question of whether a certain legislative action >was >constitutional but began examining the reasonableness or wisdom of >legislation. Liberal historians have described the court in this period >from >the 1890s until 1937 as reactionary and activist. The Court was activist >in >the sense that it read into the Constitution "substantive due process, >liberty of contract, the distinction between commerce and manufacturing, >the >labor injunction, and limitations on the police power, (and thus) the >Supreme >Court effectively blocked reform for a generation." In other words, in >the >period from the 1890s until 1937, the Courts' activism was seen as in the >service of protecting individual property rights at the expense of federal >and state regulatory reform. What happened in a series of cases, >beginning >in the 1898 Holden v. Hardy case and up to the 1908 Muller v. Oregon >case, >was that the Court increasingly relied on social policy concerns rather >than >Constitutional precedent as the basis for a more active role in policy >making. The Court began its own examination into the social >circumstances of >the case rather than deferring to the judgment or reasonableness of >legislative policy on that question. Thus, for example, in the Holden >case, >the Court examined the health conditions in the Utah mines and denied that >the mine owners and their employees were equal. Nonetheless, the Courts >still sustained the actions of state legislatures in the vast majority of >the >cases which came before it in this period. "Thus in the first third of >the >20th century two separate streams of constitutional precedent and public >policy existed. One pointed to increasing government regulation of social >and economic life, principally under federal but also involving state >authority. The other promised to maintain traditional limitations on >government in the interest of personal liberty and entrepreneurial >freedom. > > ... Ultimately, however, the two lines of constitutional development were >irreconcilable. This fact became clear during the depression, when >decentralized laissez-faire constitutionalism was superseded by the theory >and practice of the regulatory state." > > The decisive turning point for the expansion of the federal government's >power was 1937. Franklin Roosevelt's New Deal legislation had been >frustrated by the Nine Old Men on the Supreme Court. Yet FDR outfoxed not >only his enemies but also his friends with his court-packing ploy. People >said terrible things about Roosevelt's court-packing plan but in 1937 the >Supreme Court adopted an abrupt reversal of outlook toward New Deal >regulatory legislation. In a series of cases, the Court gave >constitutional >legitimacy to the administrative state and the vast economic controls and >social welfare policies which were centralized in the federal government. > > The Court, like the Congress itself, was deferential to the will of the >Executive Branch. The practice of granting quasi-executive, >quasi-legislative, and quasi-judicial powers to Independent Regulatory >Agencies increasingly became the norm. This centralized administrative >state >reflected a fundamental change in understanding of the role of government >in >our lives. The traditional notion that government was limited to securing >rights so that citizens could pursue happiness was replaced by a more >activist notion that government was obligated to guarantee social justice >through an entitlement regime which guaranteed happiness. The idea of >limited government was abandoned. > > As reaction against the excesses of the New Deal began to surface in >elections, the courts increasingly became the institution of last refuge >for >so-called forces of progress, liberalism, egalitarianism, and the New >Left. > > The Supreme Court under the leadership of Chief Justice Earl Warren >continued the advance of social justice legislation and jurisprudence in a >series of cases. While the Court took on cases which touched on every >aspect >of public and private life in America, the most prominent cases dealt with >the power of the state regarding reapportionment where the idea of the >Court's deferring on political questions was completely abandoned in >Baker v. >Carr and related cases; criminal procedures in Miranda and related >cases; >and also in racial discrimination cases such as Brown v. Board of >Education > and related cases. Critics of the Warren Court argued that the Court was >"promoting reforms outside the normal channels of political and social >change, often through decisions that failed to receive compliance in the >society at large," thus diminishing the rule of law. The supporters of >the >Warren Court argued that in areas of reapportionment, criminal procedure, >and >racial discrimination the normal constitutional avenue was a political >system >of interest group liberalism which effectively ignored the >disenfranchised. > > In a bizarre twist of fate then, the least democratic element of our >Constitutional system, the appointed judiciary, became the champion and >refuge of discrete and insular minorities. The judiciary is now guided >not >by the original Constitution but a results-oriented or outcome-based >policy >preferences. Judges now routinely and brazenly make policy decisions >without >any reference to the original Constitution or deference to the >legislative or >executive branches. What is more likely is that the legislative or >executive >branches will defer to the Courts. > > The primary reason that judges now act as super-legislators and >executivesis >due to a change in the understanding of the proper role of government in >our >lives. With the influx of Historicism, Positivism, Relativism, and >Nihilism >into the Universities and Law Schools, a new theory of jurisprudence >emerged. > > As Belz has shown, beginning in the 1890s, sociological jurisprudence >replaced the old traditional understanding of government and politics. > > According to sociological jurisprudence, law was not a body of immutable >principles and rules, as the Founding Fathers including Marshall believed, >but rather an institution shaped by social pressures which were constantly >changing. According to the theory of sociological jurisprudence, the idea >that judges simply and impartially applied the law was a fiction. What >judges really did and had always done was make law and public policy. >From >sociological jurisprudence there emerged in the 1920s a more radical and >reform-oriented theory of law, legal realism. Emphasizing personal >psychological factors in the mind of the judge, legal realists all but >abandoned the traditional idea of the rule of law. The law was nothing >more >than a kind of ad hoc method of arbitration. Underlying this new >understanding, was the notion that government and politics was not about >justice but power. Law was nothing more than the protection of one class >interest (whether economic, racial or sexual classes) at the expense of >another. Justice was nothing more than the rationalization of the ruling >class at the expense of the ruled. All legal relations were a reflection >of >power relations unfettered by any notion of divine or natural rights which >might limit the power of government. No such thing as true impartial >objective justice existed. With this understanding of law, a judges role >becomes much more expansive than it was under the traditional >understanding. > > The contrast between the modest conception of Judicial Review advanced by >Chief Justice Marshall in 1803 and the all encompassing, uncompromising, >doctrinaire conception of judicial power today is striking. Institutional >reform or restraints probably are not adequate to solve the problem of >today's judicial activism and judicial supremacy. In the end, the only >solution to the problem is proper civic education. In Planned Parenthood >v. >Casey (1992) the majority of the Supreme Court subscribed to the >statement >that the Constitution was written to establish the liberty to "define >one's >own concept of existence, of meaning, of the universe, and of the mystery >of >life." This silly statement can only be made and subscribed to by someone >who has had a long term of study in a thoroughly positivistic relativistic >nihilistic education, i.e., an education at one of our most prestigious >Universities. In other words, only a person with a Bachelor's Degree, Law >Degree, or a Ph.D. could so remarkably and dogmatically abandon common >sense >and believe such nonsense. Civic education should be education in the >principles and practice of the Declaration of Independence and U.S. >Constitution. Until Law Schools are reformed to reflect the principles of >the American Political Tradition, the lawyers they produce who then become >judges will not be able or even inclined to oppose the excessive judicial >activism we presently endure. Until the American people demand that >judges >adhere to the rule of law as outlined in the Constitution, and that the >Constitution reflects the self-evident truths of the Declaration of >Independence, our judges will continue to impose their perverse whims or >values on the American people. No institutional reform, however well >intentioned, can rein in activist judges unless the judges first receive a >good education in limited government, i.e., the Constitutionalism of >separation of powers, federalism, and old time liberalism. The anger of >the >American people is understandable and unless Judges stop doing what they >are >doing and mind their own business within the Constitutional system, the >judges themselves will be the cause of the destruction of the >independence of >the judiciary. >------- >To subscribe to c-news, send the message SUBSCRIBE C-NEWS, or the message >UNSUBSCRIBE C-NEWS to unsubscribe, to majordomo@world.std.com. Contact >owner-c-news@world.std.com if you have questions. > > > ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
Return to Table of Contents for
Supreme Law School: E-mail