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Judicial Activism: Old Problem and Old Debate

by Liz Carbone

Fighting the American Revolution was half the battle. The other half was actually managing to not only retain the fledgling country's sovereignty but to establish a system to run the country without it devolving into anarchy and chaos. It was a question that the Founding Fathers wrestled with since the conception of the United States as an actual sovereign country. But the Founding Fathers still feared tyranny in their new government and rightly so given the circumstances of their split from the Mother Country. The new government needed to listen to the people without running the risk of devolving into a tyranny of the majority. Inherent in the beliefs of the Founding Fathers was a distrust of the uneducated and passionate majority that could steer government in any direction regardless of what was best. The Founding Fathers also feared a tyranny of a single branch of the new divided government; such as: a tyranny of the executive or of the legislative branch (which was the people's branch and was how the people could create and rule by a tyranny of the majority). As such they built the government into three branches with a system of checks and balances and safeguards to ever prevent government tyranny or tyranny of the majority. And so the story goes on.

One of these safeguards was the creation of the third branch of government: The Supreme Court of the United States. The Supreme Court was enacted to be the supreme appellate court whose original jurisdiction was merely concerned with questions regarding states against states and ambassadors or administrators of government. Anything that does not fall within the bounds of the aforementioned is only heard in the United States Supreme Court on appeal. Judges would be recommended by the President and confirmed by the Senate. As such the judges were removed from the political process and any influences and alliances that it may forge. Additionally, this branch was now immune from the people; from their passions, self-interest, and emotions of the majority, again displaying the fear that the Founding Fathers had of the majority running the country, which would have left them (the property-owning minority elite) politically destitute. The Supreme Court was now completely isolated from the people and the political process, and would remain so for their natural life considering that their tenure was life. Life tenure again allowed the judges on the highest bench in the land to simply not care about the whimsical tide of public opinion when crafting and deciding on an opinion in a case. However, this is where things get a little interesting.

Thus far everything about the Supreme Court has been agreed upon and is expected as essentially 'correct,' despite a few mild-mannered critics who want direct election of judges. Yet, the final safeguard against a tyranny that was built into the Supreme Court has caused and continues to cause extremely heated debate. This point of contention has been dubbed 'judicial review,' which was the first act and opened the door to the even more contentious issue of judicial activism. What has been said before this point is background, what is said after this point is the basis for the debate that still is being argued by lawyers, politicians, and the majority currently.

Turning to 'Federalist 78,' written by Alexander Hamilton under the pen name Publius to garner support for and explain the Constitution, Hamilton mentions judicial review as an implicit power of the Court, as in it is not stated explicitly in the Constitution and requires some maneuvering and in-between-the-lines reading of the actual text. Judicial review is essentially the ability of the Court to determine of any aspect of legislation passed by Congress was in conflict with any aspect of the Constitution thereby rendering it unconstitutional. It would be illogical to assume this power should be given to the legislative branch due to the sheer fact that it is a conflict of interest; what Congress will declare its own laws unconstitutional? Hamilton points out that this type of situation will inevitably always arise, some law will be in conflict with another law and someone needs to sort out the mess, and who better to perform this task than the highest Court in the land that also happens to be insulated from the very political process that dogs and influences the legislative branch? The Constitution is the highest law in the land and as such all laws need to be judged against these standards. Quite simply, the Court needs to determine or judge whether or not laws meet this fundamental requirement.

Nevertheless, this was met with opposition even before the first instance of judicial review. Thomas Jefferson believed and argued that the decision on whether or not something conformed to the Constitution should be left up to State Conventions. It was these state conventions that created the national government, by sending and supply the delegates to modify the Articles of Confederation, and the Constitution. Although Hamilton argued that it was the people and not the states that made the national government, Jefferson's beliefs spawned the Doctrine of Interposition. This was the belief that states would determine constitutionality in conventions because they were a buffer between the people and the national government and as such acted or should act as the protector. But this is impractical; we should call a convention every single time an issue arises over constitutionality?

There appeared no consensus on this stalemate until about 1803 when the Supreme Court heard arguments concerning Marbury v. Madison. Basically, the Supreme Court was called upon to issue a writ of mandamus (which would be the Court ordering the executive branch to carry out a specific act) to then Secretary of State, Madison, to deliver the appointments of some judges (William Marbury) that had been approved by Adams before he had left office, which Jefferson (the new president) had barred Madison from carrying out. The Court held that writs of mandamus, enacted by the Judiciary Act of 1789 9written by the Congress) were unconstitutional and the Court did not have the power to order the executive branch to do anything. As such, the Court cemented Hamilton's plan of judicial review that was implied and mentioned in 'Federalist 78,' therefore conferring significant power upon was previously the weakest branch of government in allowing the Court the power of judicial review and forming the basis for judicial activism.

Yet, Jefferson was president at this point and never mentioned anything about the Courts decision to give itself more power and confer significantly more power on the national government. The precedent of judicial review was set and no one took a real concerted issue with it; why? One reason is that the Court basically said it did not have the power that Congress gave to it in that one instance, and in essence was ruling against itself. Who was going to argue with the Court when it rules against itself? However, bolstered by this precedent, the Marshall Court used judicial review to further the powers of national government in relation to the power of the states. In McCulloch v. Maryland the Court ruled that it was constitutional to have a national bank using the necessary and proper clause in Article I, and that the national government and its laws were supreme over the states and their laws. From this point on critics have decried the Court as becoming more and more 'active' in their rulings using this precedent of judicial review in interpretation cases, many of them 'rocket dockets' shooting straight to the Court after a very short time in the lower courts. The Rehnquist and Warren Courts have been decried as active courts, as have cases like Cherokee Nation v. Georgia, The New Deal, Miranda v. Arizona, cases involving the right to privacy, Roe v. Wade, Lawrence v. Texas, and numerous others.

However, what exactly is judicial activism? Everyone seems to have a distinct impression or definition of activism that is either distinctly negatively or positively connotated. Is it judge-made law? Is it the Court utilizing its own opinion of the Constitution and the Founders intent to legislate based on their own views? Or is it what Hamilton writes about; namely, a confine on the legislature? One of the problems is that quite simply there is no formula to determine activism and practically no universal definition by which we can all debate. To liberals it means one thing and to conservatives another. For instance, the Supreme Court struck down a Colorado law enacting anti-discrimination laws and a New Jersey law that forbade the Boy Scouts from excluding homosexuals. In the first case liberals supported the ruling and conservatives claimed it to be activism. In the second case the precise opposite was true.

Scalia has stated in the article 'What exactly is Judicial Activism? The Charges made Against the President's Judicial Nominees,' that charges of activism are largely 'Nothing but fluff and code for judges behaving badly.' Basically, it is a term for the most part used as a charge to levy against a judge for unpopular decisions or rulings. In short, the term is a politically motivated insult that really means nothing other than the one party disliked the ruling from a political standpoint. Critics usually claim that the only way to interpret the Constitution is through a strict constructionist approach and that judges should not be given the ability to use their own subjective judgments to encroach upon the power of the legislature. The judges are not in the position to make laws.

Advocates claim that activism is necessary because statutes and laws written by the legislature are so vague, as is the wording of the Constitution, that is requires wide latitude in interpretation; there are no definitions. For example, laws are enacted to establish regulating agencies for the public interest, but leaves open the question of what is public interest and how these agencies are to perform these tasks. Laws aim to increase citizen participation to a maximum feasible participation, but what does that mean? Elastic wording requires a flexible interpretation. As US Court of Appeals Judge Richard Posner states in 'What exactly is Judicial Activism? The Charges made Against the President's Judicial Nominees,' 'Statutes are so vague that they merely provide the initial impetus to the creation of frankly judge-made laws.' Furthermore, the most active periods have coincided with the times of the most turbulent and fundamental changes in the political system. For judges to legislate from the bench they would have to issue broad mandates with detailed and forward-looking rules and regulations. In most cases the Court is simply doing its job: resolving conflict. Claims that judges merely want to enact their own policies are impossible to prove. How will one ever know if the policy came before the ruling or the ruling provided a vehicle for a specific view.

Charges of activism have become so commonplace that presidents have been using them to nominate or not nominate certain judges. But simply ignoring or replacing horizontal precedent (as in earlier Supreme Court rulings) is not activism. To be true activism the Court would have to be ignoring or re-working vertical precedents (as in rulings from a higher court). To merely take the laws on face value would put the Court in the position of as a rubberstamp for the legislature. The Courts are designed to protect against the tyranny of the majority and special interest groups. Plus, quite simply Court decisions have little weight. The executive can simply not follow their advice, like what happened in the Cherokee Nation v. Georgia in 1831.

Quite simply, I am not attempting to assert that activism is good or bad, or that it exists or does not exist. Rather, we need to figure out what we are arguing about first and then attack the issue. Plus, the key is moderation. A little activism never hurts and a little restraint doesn't either. Basically it all comes down to whether or not you believe that the Constitution is a living and breathing document or something written in stone that can only be interoperated using its precise language and the intent of the founders. But this is another issue all together.

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