Posted by: anniewilson | January 13, 2009

Judicial Activism Non-Partisan

Judicial philosophy has long been a subject of debate in this country. In their attempt to create a “more perfect union” the Founding Fathers created the foundation upon which we would build this scary new land. They wisely set in place a set of checks and balances that would keep any one person, committee or body from amassing too much power. As any 8th grader can tell you, they came up with 3 branches of government which would all, equally, rule the new country. They called the document that explained all of this The Constitution. (1)

In their infinite wisdom, they decided to have a legislative body which would create the laws, a judicial body which would interpret the laws and an executive branch that would enforce the laws. One things that members of ALL 3 branches have in common is the fact that when they take their seat in the houses of our government, each and every one of them takes an oath to protect the Constitution. (2) Each branch, in it’s own way, protects the source of the powers granted them by the United States Constitution.

Creating the law is pretty clear cut, you debate and then take votes on different issues. And enforcing existing law isn’t really hard to understand either. But how does one define “interpreting” the law? Although the framers of that great document didn’t actually grant judges the massive power of total judicial review, statements by some of them, like Alexander Hamilton’s assertion that, “The interpretation of the laws is the proper and peculiar province of the courts.”, have been taken to mean different things by different people. (3)

Over the centuries, many different judges have done some rather questionable interpreting of the Constitution. In their defense they simply claim a more liberal interpretation. Early US legal precedent set by Marbury v. Madison set some basic protection for the courts when it was decided that, “The interpretation of the laws is the proper and peculiar province of the courts.” (4) What that means to a judge in Georgia might be a bit different than what it means to a judge in New York.

But many claim that some judges are exercising what they call “judicial activism”. That is, “the theory under which judges may ‘actively’ interpret the law on a broad plane and are not necessarily constrained to relying on the sources and issues strictly before them.” (5) The oft overturned Ninth Circuit Court out of San Francisco is the court that many think of when they think of judicial activism.

On the other hand, the point has been made that, “In the same way that excessively “activist” judges may exceed the boundaries of the judicial power by concocting law out of whole cloth, excessively “restrained” judges may unwarrantedly contract protections and rights conferred by the laws and the Constitution.” (6)

Many people believe that when the law is perceived to be unfair by some, judges must create a fix for the inequity. Courts can make rulings based on laws but it has been ruled that “The Supreme Court cannot rewrite statutes and cannot remove language from the statutes; such must be done by the legislature.” So, courts may take some heat for some rather unpopular decisions such as the decision by the US Supreme Court to allow Nazi’s to march down the streets of a predominantly Jewish community. (National Socialist Party of America v. Village of Skokie) (7) As unpopular as that was at the time, Jewish attorneys argued for the Nazi’s based upon Constitutional ideals.

It may be a bitter pill to swallow at times but like it or not, “Our system is not one of justice, but of laws.” (8)



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