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rightwing_constitutionBY Robert Meyer

Judicial activism is the outgrowth of a theory of law known as Legal Positivism. It began to take hold after the Civil War when the president of Harvard University, Charles William Eliot, who was an ardent Darwinist, appointed Christopher Columbus Langdell as the first dean of Harvard Law School. Under Langdell’s auspices the theory of evolving rather than fixed standards began to permeate legal theory, displacing Natural Law as the benchmark. The evolving standards concept became pervasive in all aspects of intellectual culture, with change being tantamount to progress. In law, it became the responsibility of judges to guide these changes. The legal positivism theory, that all change equals progress, encompassed what a secular philosopher, Mary Midgley dubbed as the “Escalator Myth.”

By the early 20th century we saw this doctrine migrate from the law schools to application in the courts of law. The late Chief Justice Charles Evans Hughes once quipped that,

“…we are under a Constitution, but the Constitution is whatever the judges say it is.”

Who needs a Legislature when the courts can do all that, huh? How different from James Madison who reasoned:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.”

We should best heed the advice given by Thomas Jefferson to a jurist in his era,

“On every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Frequently, left-leaning commentators will suggest that SCOTUS and lower court decisions favored by a majority of Originalist judges, in turn, constitute “conservative judicial activism.” They obviously don’t understand the activism concept. While political ideology might provide a motive for activism, it doesn’t guarantee the decision is an exercise resulting in activism. However, left-leaning jurists are more prone to meddle in judicial activism because of their judicial philosophy.  

If one professes that the Constitution, for example, is a “living, breathing” document, then there are no parameters as to the possible meaning of a particular clause, because it’s up to the whim of the jurist to guide that understanding. Cultural trends, personal opinions and even foreign laws, will be high priorities influencing that decision.

If one believes that the role of the court is to weigh in on the constitutionality of a particular issue (the view of our constitutional architects), then the role of the judge is automatically diminished or limited. He or she cannot legislate, or make decisions on the basis of “what ought to be.” The judge may decide that since the Constitution is silent on an issue, then the court has no purview or jurisdiction in that area. That would automatically make courts less powerful and nix the temptation to become modern philosopher-kings. That sort of thinking is joined at the hip with the Originalist judicial philosophy. In fact, while all the justices on the conservative wing of the SCOTUS probably had political or moral objectives to the majority decision on same-sex marriages, most argued that the issue was best left to the legislatures.

Many years ago a prominent Christian theologian had lunch with the late judge Robert Bork, who conceded that judicial decisions are no longer based on constitutionality. To paraphrase Justice Antonin Scalia, a recent decision written for the SCOTUS majority was a mystical pontification of language hardly different than one might find on a piece of paper in the midst of a Chinese fortune cookie.

We get worthy advice from Washington’s Farewell Address:

“It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism…If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Washington concedes that in the short run ‘usurpations’ sometimes result in salutary consequences, but in the long haul, they pave the road to tyranny.

“Judicial activists,” bend the meaning of the Constitution to bring about the results they desire. In doing so, they act as legislators, if not philosopher-kings, violating the separation of powers. This practice results in the codification of abominable jurisprudence.

Judicial activism is such a tempting and dangerous practice, because it allows unelected officials to do what cannot ordinarily be accomplished legislatively, thus removing civil policy entirely from the democratic processes regarding the will of the people and the rule of law.

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