These days, just about every news cycle conservative pundit bellyaches about “judicial activism.” Two recent examples include the Supreme Court striking down the death penalty for minors and the Terri Schiavo ordeal.
Over and over again, the clarion call of Rush Limbaugh’s dittoheads and the Hannitized masses is that the judiciary is overstepping its authority by “writing laws instead of interpreting them.” Right wing greats Pat Robertson and Mark Levin have both recently come out with books decrying the role the judiciary has taken upon itself.
It’s easy to understand the frustration. Unelected officials with lifetime tenures often have the final say on matters of grave importance. In the two examples I mentioned above, judges are literally making life and death decisions for which they cannot be held accountable.
At the same time, it’s hard to take these critiques at face value when one considers the political self-interest of those who are raising them. Republicans control the legislature and the executive. Therefore, it would be in their political best interest to limit the power of the judiciary so that the branches of government they control could exert more influence. Back in the 1940s, FDR had a similar beef with the judiciary because it wouldn’t let him run rampant with his socialistic New Deal. So are Republicans really concerned about the role of the judiciary or are they just making rhetoric in their own political best interest? To be perfectly honest, I’m not sure.
For weeks now, I’ve wanted to write a column on this debate but have been unable to figure out which side of the argument I come down on.
My first stop was, of course, the Constitution. I re-read the Constitution, paying particular attention to Article III, which establishes the power of the judiciary. I drilled the words for nuance, parsing it every which way I could. This soon led to frustration, however, because the judiciary is the most vaguely defined of the three branches of government.
Not to be deterred, I turned to “The Federalist” in which Alexander Hamilton comments on the judiciary in Nos. 78-83. But this commentary was mainly concerned about when and where the judiciary would have jurisdiction.
Neither the Constitution nor “The Federalist” specifically define the limits of the judiciary’s power to interpret and apply the law. It was this vague understanding of the judiciary that left the door wide open for Marbury vs. Madison, the 1803 Supreme Court case which established the principle of judicial review.
It was in the Marbury case that the Supreme Court took upon itself the power to declare an act of Congress to be a contradiction to the Constitution, and therefore null and void. The Court set itself up as the final arbiter of the Constitution, appropriating a de facto veto that it has wielded for the past 200 years.
When I first learned about the Marbury case in high school, I was told that the Court needed to clarify its role in our system of government because it was so vaguely defined in the Constitution. I accepted it as fact from that day to this. But when I was thinking about the situation this week, the 10th Amendment came vigorously to mind.
“The powers not delegated to the United States by the Constitution or prohibited by it to the States, are reserved to the States respectively, or to the people.”
If something is not specifically provided for in the constitution, then an act of the state governments or the people, represented by Congress, is required to make it law. Because the limits of the judiciary’s power to interpret and apply the law is not specifically defined in the Constitution, the power to define these limits belongs to the States or to the people. It’s not the judiciary’s job to define its own role, it’s the job of Congress. So, in a sense, Marbury vs. Madison was unconstitutional.
How’s that for a novel concept, eh? Declaring court decisions rather than laws to be unconstitutional.
Seen in this light, it makes sense that judges would not be beholden to the voters because they are not supposed to have a direct impact on the legislative process as are the executive and legislature. Judges are not supposed to make policy decisions. It’s their job to interpret the laws that fall under their jurisdiction and to interpret and apply the laws to specific cases, not to put the laws themselves on trial.
Following the 10th Amendment argument, the judiciary has been acting in violation of the Constitution for 200 years. The only problem is, you’re never going to be able to prove it in court. Nothing short of a constitutional amendment would put the judiciary back in line. And then we would have 200 years’ worth of constitutional law that would be practically worthless. The cost of restoring our judiciary to the original intent of the framers would seem much higher than any potential benefit.
So let the dittoheads gripe and let the Hannitized masses rant. I’m going to be busy looking to the future because it’s too late to change the past. What we have may not be perfect and it may not be fair, but it’s as close as we’re going to get.

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