JUDICIAL POWER

‘We the Judges’: How Judicial Activists Rewrite the Constitution

By David Brody
Congressional Correspondent

CBN.com – WASHINGTON - In our society today, there is a real and tangible concern about what is being called "judicial activism." Many conservative legal scholars say judges today are making absurd rulings based more on their liberal thinking than what the Constitution actually says. How did we get to this point and what can be done about it?

In the beginning, our Constitution reads, "We the people." But the way the courts have been ruling recently, many legal scholars say it could very easily read "We the judges."

Judge Robert Bork said, "The problem is very grave because what you've done is take away democratic control of the culture."

Bork is leading the campaign against judicial activism. He is convinced that too many judges are making laws instead of interpreting them, and that is not what the Founding Fathers had in mind.

Bork explained, "[The judges] are steadily enacting what you might call the liberal cultural agenda."

For example, the Supreme Court ruled that Americans basically have a constitutional right to commit sodomy. Experts who believe in original intent say that is nowhere in the Constitution.

And, of course, the one case that still has legal scholars scratching their heads is the decision 32 years ago to legalize abortion.

Bork said, "Fifty-eight pages: no legal argument in it. You learn all about the Egyptians practice with respect to abortion. You learn about the English common law with respect to abortion. You learn about what the opinions of the American Medical Association are, and all of a sudden, bang, there's a right to abortion."

In a way, conservative scholars say this climate of judicial activism has been building for a while. They say, go back to the early 1800s. The big case then was Marbury v. Madison. The Supreme Court ruled for the first time that a law passed by Congress was unconstitutional. The chief justice said at the time that it was the duty of the judicial branch to determine what the law is. Fast forward 50 years later to the infamous Dred Scott decision, where the Supreme Court actually legitimized the spread of slavery. But it really was not until the 1960s that liberal judicial activism began to reach new heights. The Supreme Court justice was Earl Warren, and under his court, prayer in schools was deemed unconstitutional. A year later, reading the Bible in public schools was gone too. The justices apparently thought that they both violated the First Amendment by establishing or endorsing a certain religion.

"It's a titanic battle about the meaning and the interpretation of the Constitution," said Ralph Neas, head of the liberal group People for the American Way. He thinks the Warren court got it right in the 60s. It is part of a philosophy that looks at the Constitution as a living, breathing document that needs to evolve with the times.

"It's certainly not a stagnant document," Neas said, "because the Founding Fathers could never have anticipated the changes in technology, the changes in the way of life, and all the other things that have happened over our 200-plus years of history."

Judge Bork responded, "Well, that's one of the most preposterous tactics I've ever heard."

Bork says that you do not mess with the Constitution unless Congress and the American people want to change it. "The only thing the court can point to," Bork asserts, "[are] the actual principles of the Constitution. Now if you say, well, we'd like more Constitution principles added, we have the amendment process. You can add them by that means."

So what did the framers actually think? The answers are written down in history, in a collection of essays called "The Federalist Papers," where our Founding Fathers explained certain provisions in the Constitution. Alexander Hamilton expressed his belief that the courts would have the least power of the three branches of government when he wrote that, "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution." And in 1820, Thomas Jefferson agreed with Hamilton on the judiciary's role, warning that "to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed."

But those papers still do not stop the debate over judicial activism. Ralph Neas said, "If we were all honest, we would probably say that both the conservatives and the liberals and everything in between were judicial activists."

Judge Bork does not see it that way. He says it is about constitutional law being reinterpreted. "It's not intellectual," he said. "it's not the study of history, it's not the study of logic. What it is, is politics. It's a Left liberal version of politics."

And so, will the future be more about 'We the people?" or "We the judges?" The answer will very much define the moral direction of the country.

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