Judicial Philosophy

Why Do They Do That? 6 – Conservatives and Judges

“Since the US Constitution was written over 200 years ago by people who could never have imagined the issues we face today, we really shouldn’t hold it too firmly. As our society changes, our laws should evolve in keeping with what our culture finds acceptable, and the role of the judiciary is to facilitate that and protect the people from the tyranny of dead white men.”

The above is a pretty good description of the liberal view of the Constitution and the judiciary. It’s also a recipe for anarchy.

The Role of the Judiciary
The Constitution says oddly little about the judiciary: “The judicial Power of the United States, shall be vested in one supreme Court…” The fact that the role of the court isn’t spelled out suggests it was considered common knowledge. To see what that assumed role was, we can resort to the dictionary or the Federalist Papers.

In Federalist Paper #78 Hamilton wrote:

“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment … the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

The role of the judiciary was simply to determine whether the law was obeyed. If the law was not obeyed, it would determine an appropriate resolution within the limits of the law.

So the role of a judge is simply to say “yes” or “no.” A judge does not have the power to make up his own punishment or resolution.

When the Supreme Court rules a law unconstitutional, it was well within its power. At that point, it is supposed to tell Congress or the states, “Fix this.”

If instead the Court prescribes its own fix, that is not judging; that is legislating.

Judicial Activism vs Democracy
What’s wrong with that? Circumventing the legislative process circumvents the democratic process. “We the people” are supposed to rule through our chosen representatives. Judges are not elected legislators.

In democracy, to change the law, you can convince the people or you can convince 51% of each house of Congress plus the president. Today you can just convince 5 judges.

It’s easy to see why judicial activism would be popular with “progressives” – it’s a lot easier to convince 5 than 273 + 1 much less 100 million voters.

But when judges make law that is not democracy but oligarchy.

Originalism vs a Living Constitution
How do judges change the law? That’s the best part. Somewhere along the way we lost sight of the notion that a judge is supposed to determine what the law means; now judges determine what they’d like the law to mean. A “living Constitution” is not bound by the letters on the paper, nor the intent behind the letters, but the mood of our “society” (or what the judges say it is). We can have a “penumbra” in the Constitution from which to draw whatever we want.

Compare this to church. What would you think of a preacher who made a sermon on tithing out of Matthew 1:1?

If he can do that, there is nothing he can’t make up. Similarly a “living Constitution” gives us no protection at all. The 2nd Amendment could forbid jaywalking; there are no rules anymore.

Lately this has been facilitated by applying the laws of other nations when the courts determine what they’d like our laws to be. You may recall the ruling about executing teenagers; the argument was based more on the laws of Europe than the Constitution. However you may feel about the issue at hand, the method used to reach the conclusion was completely unacceptable.

Again, compare this to church. Should a preacher give a sermon out of the Koran? No matter how many people in the world think it’s authoritative, it’s not binding on us. Neither are the laws of Europe on Americans.

Clarence Thomas recently put it this way: “…there are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up.” (I highly recommend reading the whole article.)

Those are the only two choices – do what the text says, or do whatever you want. There really is no middle ground.

As long as we let the courts do whatever they want, we have no rights, no protections. What a “living Constitution” gives it can take.

We’re at the mercy of their creativity.

Amending the Constitution via Courts
No matter what the problems may be, how do we know this isn’t a perfectly legitimate method of updating the Constitution?

We know it’s not legitimate because the founders gave us a method for changing the Constitution. This isn’t it.

If you think the Constitution is outdated, you can amend it. It’s a long and arduous process – intentionally so. Amending the Constitution via Supreme Court ruling bypasses the safeguards the founders built into our system. That’s not how it’s supposed to be.

It’s Not About Losing
Liberals usually react to this conversation by calling conservatives poor losers – we’re usually on the losing side when judicial activism comes into play. But the issue isn’t about losing a court case. It’s how court cases are decided.

I’m willing to lose a court case where the judges show us where our logic or reading of the Constitution was wrong. I’m not willing to lose a court case where the judges pull their opinion out of thin air.

Don’t Conservatives Do It Too?
I’m not going to claim that only Democrats do this. There are Republican judges who pull the same stunts, but when they do so they are employing a liberal, not conservative, judicial philosophy.

The conservative philosophy is demonstrated by what Justice Scalia said about abortion:

“‘[I]f indeed I were ... trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view… which is to interpret the Constitution to mean that a state must prohibit abortion,’ Scalia said.

‘And you're against that?’

‘Of course. There's nothing’ in the Constitution supporting the view.”

That is originalism in all its annoying glory.

Judicial Power and Political Nastiness
Finally, when we allow judges with lifetime appointments to become a super-legislature, we drastically increase the cost of allowing judges that disagree with a given philosophy on the bench. That has contributed to the growing nastiness around judicial appointments – and presidential campaigns, for that matter.

If we want to restore some civility to Washington, we’re going to need to restore the judiciary to its proper role.

Conclusion
Conservatives have complained about judicial activism for years, but lately the left has found their share of Supreme Court rulings to disagree with. So the question for us all is, how much power do we want to allow an unelected, unaccountable body with lifetime appointments?

Who’s safer – a Supreme Court that can go a decade without any change in makeup or a Congress that is constantly up for re-election and under intense scrutiny?

Isn’t it time we tell activist judges, “Thanks, but we already have a legislature?”

Next Time
I’ve tried to make the case that conservative principles are consistent with the Bible and that they are founded on sound reason and experience. Next I’m going to answer an all too common charge leveled against conservatives.