The Imperial Judiciary
October 4, 2004
Last weekís debate over the constitutional marriage amendment brought even greater attention to the issue of activist judges. From gay marriage to Boy Scouts to frivolous lawsuits to the Pledge of Allegiance, Americans have grown increasingly distrustful and suspicious of our federal courts- and rightfully so. Never in our history have unaccountable federal judges wielded more power over our lives.
activism, the practice of judges ignoring the law and deciding cases based on
their personal political views, has intensified in the decades since Roe v.
Wade. This practice is now standard
for many federal judges. They
dismiss the doctrine of strict construction as hopelessly outdated, instead
treating the Constitution as fluid and malleable to create a desired outcome in
any given case. For judges who see
themselves as social activists, their vision of justice is more important than
the letter of the laws they are sworn to interpret and uphold.
With the federal judiciary focused more on promoting a social agenda than
upholding the rule of law, Americans find themselves increasingly governed by
men they did not elect and cannot remove from office.
what is to be done? Since many
citizens lack basic knowledge of our Constitution and federalist system, they
are easily manipulated by media and academic elites who tell them that judges
are the absolute and final arbiters of US law.
But the Supreme Court is not supreme over the other branches of
government; it is supreme only over lower federal courts.
If Americans wish to be free of judicial tyranny, they must at least
develop basic knowledge of the judicial role in our republican government.
The present state of affairs is a direct result of our collective
ultimate solution to the problem of unbridled judicial activism at the federal
level is clear: Congress must reassert its constitutional authority to define
and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no
constitutional amendments are required. On the contrary, any constitutional
amendment addressing judicial activism would only grant legitimacy to the
dangerous idea that social issues are federal matters.
Remember, when social issues are federalized, conservatives always lose.
Giving more authority over social matters to any branch of the
federal government is a mistake, because a centralized government is unlikely to
reflect local sentiment for long. If
anything, the marriage amendment would have given the secular left an excuse to
impose gay marriage on all of us in future years, as the issue would have been
cowardice enables judicial activism. Just as Congress ceded far too much
legislative authority to presidents throughout the 20th century, it
similarly has allowed federal judges to operate wildly beyond their
constitutional role. In fact, many
current members of Congress apparently accept the false notion that federal
court judgments are superior to congressional statutes.
Unless and until Congress asserts itself by limiting federal court
jurisdiction, judges will continue to act as de facto lawmakers.
political left increasingly uses the federal judiciary to do in court what it
cannot do at the ballot box: advance an activist, secular, multicultural
political agenda of which most Americans disapprove. As a society we should reconsider the wisdom of lifetime
tenure for federal judges, and pay closer attention to the judicial nomination
procedure. Itís time for the
executive and legislative branches to show some backbone, appoint judges who
follow the Constitution, and remove those who do not.
Itís also time for Congress to start establishing clear limits on
federal judicial power.