December 4, 2000
Activist Courts Threaten Our Liberty
The Judicial Coup Began Decades Ago
The presidential election controversy not surprisingly reached the Florida Supreme Court, which rendered a verdict stunningly at odds with Florida law. Of course both camps in the dispute are guilty of exhibiting a "win at all costs mentality", using teams of lawyers to piously argue against the "injustices"they have suffered. Both are interested only in the final outcome, despite their shameless references to the Constitution and the "rule of law." Even in this atmosphere, however, most Americans still expected the Court to issue an impartial decision based on a rational interpretation of Florida law. It appears, however, that the Court simply ignored the plain language of state voting laws (and the Constitution) and imposed its political will on the people of Florida and the nation as a whole. The decision perhaps is not surprising, however, in light of the trend toward activist courts in our country.
Judicial activism, once decried in politics and the field of law, happens when judges choose to create an outcome rather than follow the laws enacted by the legislature. The legal world once criticized such judges for being "results oriented," which meant they were not doing their job. Most judges used to take pride in zealously maintaining a proper judicial temperament, never allowing personal or political feelings to influence a decision. In short, judges once simply interpreted and applied the law to effect the intentions of the legislature.
Today, however, judges at every level increasingly engage in shaping the law to meet their particular political and social agendas. Liberal/collectivist interests especially have found a sympathetic audience among our federal judges, who have been willing accomplices in crafting liberal legislation and overriding properly enacted state law. Perhaps the most egregious example of judicial legislation is the infamous Roe v. Wade Supreme Court decision, which created a federal constitutional "right" to abortion out of thin air. While the collectivist agenda is advanced, activist courts have refused to uphold economic due process rights and property rights. The result is a legal landscape where all manner of fabricated social rights are upheld (e.g. entitlements), while true constitutional rights (e.g. gun ownership, religious freedom) are trampled.
The real victim, of course, is the Constitution and our liberty. The Founding Fathers created three coequal branches of government so that federal power never could grow unchecked. Their goal was to safeguard liberty. The judiciary was charged with preserving liberty by overturning laws which violated the Constitution; otherwise its role was to effectuate the intent of Congress. Over the past century, however, the unconstitutional notion of judicial supremacy has emerged in American politics. We have come to view courts as omnipotent superlegislatures which can substitute their wisdom rather than follow the law.
The Florida decision at least brings attention to the unfortunate activist trend; hopefully more Americans will give thought to the proper role of our courts as a result of the presidential election. Liberty cannot be preserved unless each branch of government stays within the confines of its constitutionally authorized powers. The separation of powers created in our Constitution is not an antiquated notion or a rhetorical theory, but rather a critical doctrine which is needed today more than ever.