While ordinary people may not be able to give each case number or explain in fine detail the legal principles being bent, they are clearly concerned about too many judges too ready to legislate from the bench. Why do average Americans have such an instinctive response to judicial activism? I suggest there's an easy explanation. It's called the fourth grade.
In the first civics course any of us ever take, we learn about the "separation of powers"--the doctrine that constitutional authority should be shared by three distinct branches of government: the legislative, the executive and the judicial. Each has a role. That of the judiciary is to strictly apply the law and defend the Constitution as written. The Founders' theory was a simple one: By dividing power, the three branches of government would be able to check the powers of the other.
The separation of powers makes so much sense even to young minds--because in devising our system of government, the Founders took into account the nature of man. They understood we needed a government that was strong but not overbearing, that provided order but did not trample on individual rights.
"If men were angels," James Madison famously said, "no government would be necessary." But men are not angels--and so government is necessary. Mr. Madison and his colleagues did not take Utopia as their starting point; rather, they took human beings as we are and human nature as it is. They believed ambition had to be made to counteract ambition.
Scholars of American government have pointed out the Founders were determined to build a system of government that would succeed because of our imperfection, not in spite of them. This was the central insight, and the great governing genius, of America's Founders.
And in all of this the Founders believed the role of the judiciary was vital--but also modest. They envisioned judges as impartial umpires, charged with guarding the sanctity of the Constitution, not legislators.
In Federalist No. 78, Alexander Hamilton described the judiciary as the branch of government that is "least dangerous" to political rights. Because it was to have "no influence over either the sword or the purse," the judiciary was "beyond comparison the weakest of the three departments of power." As a result, Hamilton told us, "liberty can have nothing to fear from the judiciary alone."
But Hamilton's optimism has not been borne out.
Friday, November 11, 2005
Everything I Needed To Know About Judicial Activism, I Learned In Kindergarten
A good Karl Rove speech to the Federalist Society. I liked this part: