Wednesday, August 18, 2004
The "Danger" of Activist Judges
(Hey all, in a fit of productivity fueled by insomnia, I pounded this out a few weeks ago. Hope you like it.)
Ya know what, I’m getting pretty darned tired of hearing those talking heads on TV and politicians talking about the danger of ‘activist judges’. In fact, the reason why it’s pushing the elephant to the edge is that the only danger posed by activist judges is to politicians and journalists who try to capitalize on peoples’ most base fears. Let me explain.
The founding fathers set up a brilliant system with our Constitution. A system that has lasted longer and proved to be more flexible than any other constitution in existence today. Why? Because unlike other political systems, say communism, the constitution is not based on some mythic view that people will act in others best interest. No, our constitution was set up with the keen understanding that people will act in their own best interests and the Founding Fathers attempted to design a system that would channel these urges into a mechanism that promotes liberty and dampens our some of our less desirable behavior.
Key to the functioning of this system are the three gears of the constitutional mechanism- the legislature, the executive and the judiciary. Each has its own function and each serves as a counter balance to the other.
The executive branch is charged with enforcing the laws of the land. To keep its power in check, the Constitution gives the legislature the power of ‘advise and consent’ to approve or reject key appointments (including judges) and to ratify treaties. Thus, the executive branch is constrained and even if both the executive branch and the legislative branch are controlled by the same party, the minority party still retains enough power that the majority party can not appoint or legislate itself into permanent power.
Likewise the legislature is similarly balanced. Unlike the executive, the legislature was originally the only branch of government that was directly elected (in the case of the House of Representative) by the people (White land owning men at first, women in the 1900s, and blacks in the 1960s). The constitution even balances the legislature against itself - the structure a brilliant compromise between the large states and the small states, again so that the rights of the minority (small states) would be balanced against the power of the majority (large states) (See the Connecticut Compromise: http://www.u-s-history.com/pages/h371.html)
Anyway, the structure of our legislative branch is so intricate it’s worthy of the many theses that are dedicated to it. But, as I mentioned the legislature is responsible to the people who elect them every two years or six years. As today, the fear was that the less scrupulous politicians (imagine that concept!) would play on a populist-lowest-common denominator to get elected. (Thank goodness that doesn’t happen anymore…wink!). So, how do you protect a fragile republic from the less desirable urges of the ‘mob’? The answer was to create an appointed judiciary to serve as a check on the legislature and the establishment of judicial review in the seminal case Marbury v. Madison. (See: http://caselaw.lp.findlaw.com/data/constitution/article03/13.html) Or as Justice Marshall put it in his ruling:
So, pardon me if I turn a blind eye to hacks or politicians that decry the “Tyranny of the Unelected Judiciary.� Despite all the fear that these snake oil salesmen are selling, the truth is that the role of the judiciary is just as the founding fathers imagined. (Even if we are trying to deal with issues that they could not imagine). But what’s the check on these ‘unelected tyrants in black robes? Easy, the constitution, the legislature and the executive. The executive gets to pick the judges with approval of the Senate, and the judges are bound by the constitution and the thousands of precedents and rulings that interpret its meaning.
There are numerous examples we could discuss here, like The People V. Larry Flynt, or Brown V. Board of Education, or flag burning. The example I’ll use however, is gay marriage. From a legal perspective, it is an interesting and compelling issue that currently dominates the headlines and campaign rhetoric. The basis of the whole kurfufull is of course the Massachusetts’s Supreme Court Ruling in Goodridge v. Department of Public Health that legalized gay marriage in that state.
(link: http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html
Like the federal government, most state government structures mirror the division of powers found in the federal government and the state Constitution is the supreme law of the state. In Goodridge, the state Supreme Court had to decide if a state law that limited the benefits and responsibilities of civil marriage to heterosexuals fit the state constitutional guarantee of equal treatment under the law. Like the Court in Marbury v. Madison, the Mass. Court had to decide if they would disregard the state constitution or disregard a law that appeared to violate its provisions. Here’s what they said
Ok, so the court fulfilled its duties in interpreting the state constitution and found that limited civil marriage to heterosexual couples violated the values of the constitution. This gets us to the current argument that in rending its decision, the court prevented the ‘people’ from having their say. I beg to differ. The people of Massachusetts had and have several courses of action available to limit the power of the state supreme court. First, they elected the representatives that drafted the constitution. Second, they elect the governor and representatives that appoint the judges. Finally, if they don’t like the outcome of the case, they can change the state constitution to reverse the decision, which is exactly where the debate currently stands.
Amending constitutions is hard, which is why the U.S. Constitution has only been amended 27 times, despite thousands of proposed amendments. The brilliance of making such amendments difficult is it results in a process that favors liberty. You may not agree with the liberty, but you’re going to have to find 60% of your fellow citizens who feel the same way to turn the tide. Thus, the difficulty in amending the Constitution promotes the spread of liberty and makes efforts to turn it back very labor intensive.
So there is a danger posed by the federal judiciary, a danger that politicians who try to appeal in dangerous “us v. them� rhetoric can’t cobble together a majority to overrun an unpopular minority. Unlike other countries where some type of majority (ideological, religious, ethnic) can run roughshod over a minority, our system strives to temper the less desirable urges of the majority (fired up by politicians) and respect the rights of minorities. Of course there are countless examples of when the courts have gotten it wrong, but over time the effect has been to expand the bounds of liberty and equality. If that comes at the expense of a politician, then that’s a price the Elephant is willing to pay.
Ya know what, I’m getting pretty darned tired of hearing those talking heads on TV and politicians talking about the danger of ‘activist judges’. In fact, the reason why it’s pushing the elephant to the edge is that the only danger posed by activist judges is to politicians and journalists who try to capitalize on peoples’ most base fears. Let me explain.
The founding fathers set up a brilliant system with our Constitution. A system that has lasted longer and proved to be more flexible than any other constitution in existence today. Why? Because unlike other political systems, say communism, the constitution is not based on some mythic view that people will act in others best interest. No, our constitution was set up with the keen understanding that people will act in their own best interests and the Founding Fathers attempted to design a system that would channel these urges into a mechanism that promotes liberty and dampens our some of our less desirable behavior.
Key to the functioning of this system are the three gears of the constitutional mechanism- the legislature, the executive and the judiciary. Each has its own function and each serves as a counter balance to the other.
The executive branch is charged with enforcing the laws of the land. To keep its power in check, the Constitution gives the legislature the power of ‘advise and consent’ to approve or reject key appointments (including judges) and to ratify treaties. Thus, the executive branch is constrained and even if both the executive branch and the legislative branch are controlled by the same party, the minority party still retains enough power that the majority party can not appoint or legislate itself into permanent power.
Likewise the legislature is similarly balanced. Unlike the executive, the legislature was originally the only branch of government that was directly elected (in the case of the House of Representative) by the people (White land owning men at first, women in the 1900s, and blacks in the 1960s). The constitution even balances the legislature against itself - the structure a brilliant compromise between the large states and the small states, again so that the rights of the minority (small states) would be balanced against the power of the majority (large states) (See the Connecticut Compromise: http://www.u-s-history.com/pages/h371.html)
Anyway, the structure of our legislative branch is so intricate it’s worthy of the many theses that are dedicated to it. But, as I mentioned the legislature is responsible to the people who elect them every two years or six years. As today, the fear was that the less scrupulous politicians (imagine that concept!) would play on a populist-lowest-common denominator to get elected. (Thank goodness that doesn’t happen anymore…wink!). So, how do you protect a fragile republic from the less desirable urges of the ‘mob’? The answer was to create an appointed judiciary to serve as a check on the legislature and the establishment of judicial review in the seminal case Marbury v. Madison. (See: http://caselaw.lp.findlaw.com/data/constitution/article03/13.html) Or as Justice Marshall put it in his ruling:
“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.�
So, pardon me if I turn a blind eye to hacks or politicians that decry the “Tyranny of the Unelected Judiciary.� Despite all the fear that these snake oil salesmen are selling, the truth is that the role of the judiciary is just as the founding fathers imagined. (Even if we are trying to deal with issues that they could not imagine). But what’s the check on these ‘unelected tyrants in black robes? Easy, the constitution, the legislature and the executive. The executive gets to pick the judges with approval of the Senate, and the judges are bound by the constitution and the thousands of precedents and rulings that interpret its meaning.
There are numerous examples we could discuss here, like The People V. Larry Flynt, or Brown V. Board of Education, or flag burning. The example I’ll use however, is gay marriage. From a legal perspective, it is an interesting and compelling issue that currently dominates the headlines and campaign rhetoric. The basis of the whole kurfufull is of course the Massachusetts’s Supreme Court Ruling in Goodridge v. Department of Public Health that legalized gay marriage in that state.
(link: http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html
Like the federal government, most state government structures mirror the division of powers found in the federal government and the state Constitution is the supreme law of the state. In Goodridge, the state Supreme Court had to decide if a state law that limited the benefits and responsibilities of civil marriage to heterosexuals fit the state constitutional guarantee of equal treatment under the law. Like the Court in Marbury v. Madison, the Mass. Court had to decide if they would disregard the state constitution or disregard a law that appeared to violate its provisions. Here’s what they said
Marriage is a vital social institution," wrote Chief Justice Margaret H. Marshall for the majority of the Justices. "The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In turn it imposes weighty legal, financial, and social obligations." The question before the court was "whether, consistent with the Massachusetts Constitution," the Commonwealth could deny those protections, benefits, and obligations to two individuals of the same sex who wish to marry.
In ruling that the Commonwealth could not do so, the court observed that the Massachusetts Constitution "affirms the dignity and equality of all individuals," and "forbids the creation of second-class citizens." It reaches its conclusion, the court said, giving "full deference to the arguments made by the Commonwealth." The Commonwealth, the court ruled, "has failed to identify any constitutionality adequate reason for denying civil marriage to same-sex couples."
The court affirmed that it owes "great deference to the Legislature to decide social and policy issues." Where, as here, the constitutionality of a law is challenged, it is the "traditional and settled role" of courts to decide the constitutional question. The "marriage ban" the court held, "works a deep and scarring hardship" on same-sex families "for no rational reason." It prevents children of same-sex couples "from enjoying the immeasurable advantages that flow from the assurance of 'a stable family structure in which children will be reared, educated, and socialized."' "It cannot be rational under our laws," the court held, "to penalize children by depriving them of State benefits" because of their parents' sexual orientation.
Ok, so the court fulfilled its duties in interpreting the state constitution and found that limited civil marriage to heterosexual couples violated the values of the constitution. This gets us to the current argument that in rending its decision, the court prevented the ‘people’ from having their say. I beg to differ. The people of Massachusetts had and have several courses of action available to limit the power of the state supreme court. First, they elected the representatives that drafted the constitution. Second, they elect the governor and representatives that appoint the judges. Finally, if they don’t like the outcome of the case, they can change the state constitution to reverse the decision, which is exactly where the debate currently stands.
Amending constitutions is hard, which is why the U.S. Constitution has only been amended 27 times, despite thousands of proposed amendments. The brilliance of making such amendments difficult is it results in a process that favors liberty. You may not agree with the liberty, but you’re going to have to find 60% of your fellow citizens who feel the same way to turn the tide. Thus, the difficulty in amending the Constitution promotes the spread of liberty and makes efforts to turn it back very labor intensive.
So there is a danger posed by the federal judiciary, a danger that politicians who try to appeal in dangerous “us v. them� rhetoric can’t cobble together a majority to overrun an unpopular minority. Unlike other countries where some type of majority (ideological, religious, ethnic) can run roughshod over a minority, our system strives to temper the less desirable urges of the majority (fired up by politicians) and respect the rights of minorities. Of course there are countless examples of when the courts have gotten it wrong, but over time the effect has been to expand the bounds of liberty and equality. If that comes at the expense of a politician, then that’s a price the Elephant is willing to pay.
