Putting the truth to Shakespeare’s line that “brevity is the soul if wit,” Americans have traditionally defined the essence of democracy with few words. For example, in the Declaration of Independence, Jefferson defines governments as “deriving their just powers from the consent of the governed.” The Constitution echoes that notion in its opening line, “We the People of the United States . . . establish this Constitution.” In his Farewell Address, Washington counsels citizens that to believe in democracy is to believe that laws are valid until they are changed “by an explicit and authentic act of the whole people.” Finally, in the Gettysburg Address, Lincoln, the great master of American brevity, speaks of a “nation under God” experiencing “a new birth of freedom” to protect “government of the people, by the people, for the people.”
In contrast to the plural forms which lie at the heart of those definitions, the idea of judicial activism reverts to the singular “I,” that ancient governmental notion despised by all who believe in the political equality of every person, an equality most Americans ascribe to the “Creator,” who has “endowed” each human being with “certain unalienable Rights.” Seen in this context, judicial activism represents nothing more than another expression of the frailty Washington termed “that love of power, and proneness to abuse it, which predominates in the human heart.”
Because the idea of judicial activism arises from human imperfection, we ought not express surprise when former judge and legal scholar Robert Bork points out that throughout American history, acts of judicial activism have not been limited to a single period, political party, or ideology. Indeed, as early as 1825 Jefferson expressed one of his many condemnations of an “activist” judiciary: “This member of the government [the judiciary] . . . has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt.”
Choosing not to imitate errors of the past or to do what is expedient in the present, Conservatives, Libertarians, and Moderates of all political shades have argued for half a century that the Jeffersonian vision of a judiciary with limited power is the only judiciary that is constitutionally, morally, and pragmatically defensible. In contrast, Liberals and Democratic politicians have not only promoted the idea of judicial activism, they have asserted that the only “proper” kind of activism for “interpreting” the Constitution and other laws as “living documents” is Liberal Judicial Activism. This faction has been so successful in advancing the cause of judicial activism that many people ask how such an arrogant, unconstitutional, and anti-constitutional idea has come to infect so much of American jurisprudence.
The answer to the question lies in Jefferson’s warnings about the judiciary as the branch of government most easily manipulated by those who with an insidious intent to circumvent the power of the people will undermine the Constitution by “sapping and mining, slyly, and without alarm.” So it is that slyly, over a period of five decades, those who perversely condemn the notion of a Jeffersonian judiciary as a reactionary abomination, have succeeded in establishing the principles of Liberal Judicial Activism as a powerful force in politics, in the judiciary, and in law schools, where the notion of law as a “living document” whose “life changes” should be “interpreted” by judges is routinely taught as objective truth.
Fortunately, for the first time since the Warren Court breathed life into Liberal Judicial Activism, we are witnessing the beginnings of a national dialogue about judicial philosophy. However, to be intellectually honest, this dialogue must engage two questions: How does the notion of any kind of judicial activism conform to the idea of democracy? How do those who propose the validity of Liberal Judicial Activism know that it represents the only “constitutional” and “moral” activism?
With the national debate now begun, those of us who agree with Jefferson must seize the moment to discuss and debate these two questions in every voting precinct in America. Moreover, we must see to it that specific rulings made by Liberal Activist judges become an important part of that dialogue.
In this vitally important endeavor, we should seek the support of all Americans. It is unlikely, however, that we will receive the help of Democratic politicians, who for half a century have supported Liberal Judicial Activism to achieve through the courts what they can not achieve at the polls. Indeed, rather than join the dialogue with open, honest debate, they will try to prevent it or confuse it through (to quote Shakespeare again) “machinations, hollowness, treachery, and all ruinous disorders.”
In reality, Democratic politicians have already begun their machinations to prevent an honest debate through the old political trick of mud slinging. To prove this fact, we need take note only of their name calling (“extremist” being their favorite pejorative) and their blatantly hypocritical and prejudiced questions directed to a judicial nominee, asking him whether his Christian beliefs require that he execute the work of his judicial office as a theocrat.
The hollowness of Democratic discussions about the judiciary is exemplified by their careful avoidance of certain facts, a few of which follow.
Of the 34 justices nominated for the Supreme Court since 1933, 17 have been approved when Democrats controlled both the Presidency and the Senate with not a single filibuster conducted against any person nominated in these times of “one party rule.”
Among those 34 justices we find the following names, all of whom Democrats hail as paragons of judicial “brilliance,” untainted by the least bit of “extremism.”
William O. Douglas (Denied his chance to be President, this Liberal Activist discovered another way to satiate his love of power.)
Earl Warren (When Eisenhower took Warren’s “rightful” place as President, the heartsick Warren multiplied the potency of the medicine called “Douglas’ Revenge” a thousand fold and became the King of Liberal Judicial Activism.)
William J. Brennan, Jr. (It never occurred to this champion of the “rights” of criminals that a fundamental purpose of society is to protect the rights of victims and the rights of the people as a whole.)
Abe Fortas (President Johnson nominated this paragon of the “independent judiciary” after Fortas, a Liberal Activist, had served as Johnson’s personal lawyer in 1948 when Johnson won a controversial Texas Democratic Senate primary race by 47 votes.)
Ruth Bader Ginsburg (President Clinton nominated this “non-extremist” Liberal Activist who served the ACLU as a board member and general counsel.)
With those facts in mind, we turn to acts of Democratic treachery and ruinous disorders, the proof of which comes from the mouths of Democratic leaders who threaten to slow down or stop the Senate’s work, even on matters as important as Social Security, if Democrats are prevented from continuing their filibusters in the name of “mainstream America.”
It is clear that Democratic politicians will never argue the case for Liberal Judicial Activism in a national dialogue to which they bring their full honesty but will, instead, do all that they can to prevent it. What they fail to understand, however, is that those of us committed to a dialogue about the role of the judiciary will not be deterred; for we consider our part in that dialogue a profound duty, a duty that calls us to reject the obfuscations of mere politicians who would purchase power at any cost to stand beside the ideas of truly great leaders such as Jefferson, Washington, and Lincoln.
With respect for scholars who for decades have fought the battle to put an end to judicial activism and with admiration for every other American who has joined and will join hands with them, I close with a suggestion made with help from great Americans who knew that the most important truths can be expressed in but a few words:
Let us win this fight against government by the first person singular by remaining united on the fundamental principle that judicial activism is constitutionally and morally wrong because in substituting the opinion of one or more judges for the will of the people, it denies the truth that governments “derive their just powers from the consent of the governed,” it denies the truth that “We the People of the United States . . . do ordain and establish this Constitution,” it denies the truth that no democratic law can be written or changed except “by an explicit and authentic act of the whole people,” and it denies the truth that hundreds of millions have labored to nurture and millions have given “the last full measure of devotion” to defend this “nation under God,” a nation founded upon the morally inspired dream and intellectually inspired genius which created a “government of the people, by the people, for the people.”
Copyright by A.J. DiCintio
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