Mike Rosen of the Rocky Mountain News:
At the heart of the battle is the growing movement of judicial activism by liberals on the bench. Lacking majority support and unable to implement their political agenda through the democratic process in federal and state legislatures, Democrats have turned to the courts, enlisting activist liberal judges to reinterpret the Constitution and statutes according to their personal preferences, legislating by judicial fiat. On the other side, are conservative judges who believe they should be guided by the original intent of the Constitution and the law. If times and circumstances have changed, the appropriate remedy is to pass new legislation or officially amend the Constitution by the prescribed process. The floodgates of judicial activism were opened in 1954 with the landmark Brown v. Board of Education ruling, outlawing segregation in public schools. This may have been good and just public policy, but it was terrible jurisprudence, setting an activist precedent that has since accelerated. The appropriate means to end segregation should have been through legislation or a new constitutional amendment. It might have taken longer, but it would have maintained the integrity of the court. The ends don't justify the means. Rather than relying on any principles of constitutional law, the exceedingly liberal Earl Warren court cited social science theory as its justification. This is confirmed by the New York Times headline the next day heralding the Brown decision: "A Sociological Decision: Court Founded Its Segregation Ruling on Hearts and Minds Rather Than Laws."
As a footnote: Alexander Hamilton remarked in The Fedrealist, No. 78, that the basic principle was that the Constitution should be seen as "fundamental law" and the role of the courts was to "ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body" (it took the opinion of Chief Justice John Marshall in Marbury v. Madison to give legal effect to this idea). I would agree with Mr. Hamilton that the courts are to interpret the "fundamental law" and not, for instance, to assert their control in private affairs.
Recent Comments