The Conservative Fetish over "Judicial Activism"

This weekend on Meet the Press, Senator Tom Coburn (R) made what I think was an interesting description of what an "Activist Judge" is. In his view Judges should not "make law", that being the province of Congress, and when a Judge has a disagrement with the Congressional view in relation to the Constitution instead of striking down that law -- they should instead refer the matter back to the Congress for correction.

RUSSERT: Do you believe that Congress has the right to restrict the sale and transfer of machine guns, or do you think that Judge Alito's correct that Congress should not be interfering in that?

SEN. COBURN: No, I think we probably have the right to do it. But I don't think a judge has the right to make that decision. I think Congress--and that brings us back to the whole point. Those aren't decisions judges should be making. Those are decisions that legislators should be making. And that's how we've gotten off on this track is, that we allow judges to start deciding the law, new law, rather than interpret the law that the Congress--what the--what should have happened in that case is this an area that's up for debate and needs to go back to Congress. If Congress decides that, then it should be there.

My question is - where exactly is the Constitutional Foundation for that view?

Hamilton in the Federalist Papers #79

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

So according to Hamilton, the Court is the arbiter of conflicts between Congressional Will, the Constitution and the People - with Congresional Will being trumped by either. In additional to Hamilton, this issue has been long settled by case of Marbury V Madison (1803):

While a section of the Judiciary Act of 1789 granted the Court the power to issue writs of mandamus, the Court ruled that this exceeded the authority allotted the Court under Article III of the Constitution and was therefore null and void. So, while the case limited the court's power in one sense, it greatly enhanced it in another by ultimately establishing the court's power to declare acts of Congress unconstitutional. Just as important, it emphasized that the Constitution is the supreme law of the land and that the Supreme Court is the arbiter and final authority of the Constitution. As a result of this court ruling, the Supreme Court became an equal partner in the government.

So exactly where do people like Coburn get off accusing judges of being Activist for simply doing their job and placing the Constitution over and above the will of Congress, because that's exactly what we're talking about here. Time and time again - Judges have been accused of supposedly placing their interpretation above the will of lawmakers and even above the will of the people - but one of the core tenents of our entire society is that the Constitution is the protection against the tyranny of the majority.

Madison in Federalist #47

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.

Federalist #51

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

In short it is an distinct, independant and co-equal judiciary that alone stands to prevent the passions of majority factions in either Congress or the Public from creating tyranny of that of the minority. It has been through the Courts that Segregation began to erode via Brown V Board of Education (1958). This was clearly an Activist court, one that struck down laws which clearly violated the rights of all by supporting the majority faction over that of the minority. If persons like Coburn are to have their way, the final word on our nation which shift from the Courts and the Constitution to the Legislature and the President. The Judiciary would not be independant, but rather would be the subordinants of the Congress -- overring them notes on thier law as if they were a pesky assistant in the corner.

This isn't what America was ment to be, and with luck - something it will never be. But it seems to be what Conservatives want - but only for interpretations of the Constitution which they disagree withl as well documented by Media Matters.

Numerous media outlets (see here, here, and here) have reported Bush's claim that he wants to nominate a "strict constructionist" to the Supreme Court -- which he defines as someone "who will strictly interpret the Constitution and not use the bench to legislate from." The Washington Post even suggested that "judicial activism" is the unique province of liberal Supreme Court justices and judges. But these reports never offered a definition of judicial activism or probed the Bush administration for one, nor did the Post examine the validity of its accusation that liberals are more likely to legislate from the bench.

Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder have offered one definition of judicial activism -- a justice's propensity to strike down statutes passed by Congress -- and under their measure, it's the conservatives on the Supreme Court who are the real activists. Justice Clarence Thomas was the most likely to strike down federal laws, while Ginsburg and Stephen Breyer -- the only two current justices to have been appointed by a Democratic president -- were the least likely to do so.

Now, Clarence Thomas is not eactly what anyone would consideral a "Liberal Activist" Judge - but he happens to be the most Activist of Judges on the Supreme Court, following immediately by Justice Rehnquist and Scalia. As President Bush continues to pump the court full of Converstives, it's far more likely that the court will become far more "Activist" that it has ever been - but the question comes will this form of activism uphold the tenents put forth by the founders to protect the People from the power interests of majority factions (be they in the legislature - or in the corporate world)? Somehow, I strongly doubt it.

Vyan