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Date: Thu, 17 Jul 1997 07:05:07 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Arresting Judicial Activism (fwd)

>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,' 
>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 
>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 
>thwarting the will of the people as expressed in elections and as 
>by their representatives in Congress and state legislatures.   While the 
>of the judiciary in our Constitutional system has often been occasion for
>controversy, in recent years the decisions of judges have lead to a 
>for action to rein in the judges by various reforms.  This concern has 
>on an increasing urgency among conservatives with Bill Clinton's 
> Clinton had appointed 202 of 837 federal judges as of the end of his 
>term and most likely will have appointed over half of the federal 
>if he serves out his term.   
>	Where there's smoke there must be fire.  This brouhaha emerges from a 
>train of abuses by activist judges claiming judicial supremacy.  The 
>complaint is that judges are making the law rather than simply 
>or applying the law.  Under the original Constitution, public policy was 
>be made by the elected representatives in the legislatures, the execution 
>the law was left to the President or the Governor, and judges had the 
>task of adjudicating disputes at law and on rare occasions to review 
>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.  
>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 
> 3)judges find in penumbras and emanations a right to abortion or
>infanticide; 4)judges have excluded religion from public life, i.e., 
>god from public schools and the public square;  5)judges have enacted 
>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 
>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 
>New York for refusing to vote for legislation which the judge had ordered;
>14)judges order that children of illegal aliens receive schooling at 
>expense.  Like the Energizer Bunny, the list of abuses could go on and on 
>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 
>separation of powers, federalism, and the distinction--essential to the 
>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 
>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 
>role in evaluating prospective judges.  House Judiciary Committee 
>Henry Hyde, will consider proposals which would prevent judges from 
>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 
>of Marbury v. Madison  handed down in 1803.  This case was the first 
>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 
> The first involved the power of judicial review, the second involved the
>limit or scope of judicial power in respect to political questions.  The 
>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 
>Constitution.  In other words, Constitutional Law is superior to statute 
> Statutes must conform to the outlines laid out in the Constitution.  As
>Judge Clifford Taylor of the Michigan State Court of Appeals has argued: 
>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 
>relying on the Constitution and where the law and Constitution are in
>conflict."  Statutes are made by majorities in Congress, Congress derives 
>authority from the Constitution, thus the subordinate power of Congress
>should not do anything which violates the superior power of the 
> 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 
>arising under this Constitution, the Laws of the United States, and 
>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 
>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 
>especially the legislature.  Judicial review did not mean judicial 
> Judicial Review was a recognition of the supremacy of the Constitution.  
>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 
>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 
>arbiter of disputes outside its jurisdiction.  In other words, Marshall 
>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 
>sphere of judicial review was the protection of individual rights under 
>law.  At the same time, Marshall had explicitly shown the limited scope of
>judicial review by recognizing a sphere of executive power beyond the 
>of judicial review in which the president was answerable only to his
>conscience and the political process.  Marshall argued that there were 
>acts of the president which were beyond the jurisdiction of the Court and
>those he denoted as political questions.  As Constitutional Historian 
>Belz has argued:  "Distinguishing between law and politics, the 
>theory held that politico-constitutional questions were for the political
>branches to decide, and legal-juridical questions for the judiciary."   
>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 
>are accountable to the voters.  Underlying this whole argument is the 
>which was foundational to the Founding generation, that the rule of law 
>be the embodiment of procedures and rules which reflect an understanding 
>objective principles of justice.  The judiciary's role in this system is 
>be the impartial umpire of disputes at law.    
>	As late as 1877, this understanding of the limited role of judicial 
>was still recognized by the Supreme Court.  In Munn v. Illinois (1877), 
>Justice Morrison R. Waite would write that: "'It was the proper function 
>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 
>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 
>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 
>constitutional but began examining the reasonableness or wisdom of
>legislation.  Liberal historians have described the court in this period 
>the 1890s until 1937 as reactionary and activist.  The Court was activist 
>the sense that it read into the Constitution "substantive due process,
>liberty of contract, the distinction between commerce and manufacturing, 
>labor injunction, and limitations on the police power, (and thus) the 
>Court effectively blocked reform for a generation."   In other words, in 
>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, 
>in the 1898 Holden v. Hardy  case and up to the 1908 Muller v. Oregon  
>was that the Court increasingly relied on social policy concerns rather 
>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  
>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 
>cases which came before it in this period.  "Thus in the first third of 
>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 
> ... 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 
>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 
>reflected a fundamental change in understanding of the role of government 
>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 
>so-called forces of progress, liberalism, egalitarianism, and the New 
> 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 
>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 
>and also in racial discrimination cases such as Brown v. Board of 
> 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 
>Warren Court argued that in areas of reapportionment, criminal procedure, 
>racial discrimination the normal constitutional avenue was a political 
>of interest group liberalism which effectively ignored the 
> 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 
>by the original Constitution but a results-oriented or outcome-based 
>preferences.  Judges now routinely and brazenly make policy decisions 
>any reference to the original Constitution or deference to the 
>legislative or
>executive branches.  What is more likely is that the legislative or 
>branches will defer to the Courts.   
>	The primary reason that judges now act as super-legislators and 
>due to a change in the understanding of the proper role of government in 
>lives.  With the influx of Historicism, Positivism, Relativism, and 
>into the Universities and Law Schools, a new theory of jurisprudence 
> 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.  
>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 
>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 
>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 
>	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 
>Casey  (1992) the majority of the Supreme Court subscribed to the 
>that the Constitution was written to establish the liberty to "define 
>own concept of existence, of meaning, of the universe, and of the mystery 
>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 
>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 
>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 
>American people is understandable and unless Judges stop doing what they 
>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.   
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Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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