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Jewish World Review April 30, 2003 / 28 Nissan, 5763

David Limbaugh

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Turning judicial activism upside down

http://www.NewsAndOpinion.com | The New York Times in yet another editorial rant against a Bush federal judge nominee shows why we cannot entrust the Constitution to liberals. They view it not as an institutional safeguard to our liberties, but as an instrument to advance their political agenda.

That is why it's annoying when they repeatedly lecture us about President Bush's efforts to stack the court with conservative ideologues and judicial activists. They did it again in their April 28 editorial, "Another Ideologue for the Courts," in which they railed against Jeffrey Sutton, President Bush's nominee to the United States Court of Appeals for the Sixth Circuit.

Savor this passage from the editorial. "The Bush administration, however, has sought nominees whose main qualification is a commitment to far-right ideology. Mr. Sutton is the latest example. He is an activist for 'federalism,' a euphemism for a rigid states'-rights legal philosophy." Specifically, the Times complained that Sutton argued against expanding the federal Americans with Disabilities Act to cover state employees.

In their view, federalism is reduced to an irritating euphemism only honored by judicial activists. As usual, the Times has it completely backward. Neither President Bush nor his nominees believe in nor seek to implement judicial activism. The left's distortion of the concept of judicial activism, by the way, is a perfect example of its disrespect for fundamental constitutional principles necessary to ensuring and preserving our freedom.

The framers of the Constitution didn't establish our freedoms simply by decreeing them into existence. They didn't issue edicts within the four corners of that document guaranteeing that Americans would be entitled to a certain list of freedoms. That prose wouldn't have been worth the parchment it was written on.

They invested the federal government with sufficient powers to enable it to perform its essential functions and reserved the remainder to the states and the people. But they knew you couldn't achieve liberty through these affirmative grants (or reservations) of power alone. They also imposed limitations on governmental power because unchecked governmental power destroys liberty, which brings us to the doctrines of federalism, separation of power and judicial activism.

With federalism they divided power between the federal and state governments. With the separation of powers, they diffused the power of the federal government among three distinct, but interactive branches - each checking the others against becoming too powerful. (The Bill of Rights and other constitutional amendments contain other limitations.)

To preserve our constitutional scheme of liberties, it is imperative that federalism and the separation of powers be taken seriously. That means the federal government shouldn't act outside its express and implied powers. And it means that each branch of government must operate within its own sphere. The legislative makes laws, the executive enforces them and the judiciary interprets them.

Each time the federal government usurps power intended for the states, our freedoms erode. Each time one branch assumes a function of another, our freedoms erode.

One of the primary functions of the federal judiciary has been to prevent the other two branches from acting beyond their constitutional authority. It was also intended to prevent federal encroachments on states' rights - in other words, to honor the federalism doctrine. Only in recent years has the court begun to resume that important duty.

The judiciary, however, was designed to be a passive branch, deciding legal disputes (cases and controversies) among people and interpreting the laws, including the Constitution, not making the laws or creating new constitutional rights, such as privacy. Judicial activism occurs when the judiciary makes rather than interprets laws.

So it was wholly proper (and not judicial activism) for the Supreme Court to bar federal suits by state employees against their employers under the Americans with Disabilities Act when the 11th Amendment to the Constitution forbids such suits. It would have been improper judicial activism for the court to permit such suits just because a majority of the judges happened to believe it was a desirable policy.

To the Times, conservative judicial activism is when the courts refuse to implement liberal policy, even when doing so would be outside their constitutional authority. It's kind of like the Soviet Communists defining imperialism as the actions of any foreign power standing in the way of Soviet territorial expansion.

The confirmation of Jeffrey Sutton to the appellate bench will not be a triumph for ideological conservatism or judicial activism, but for judicial restraint, the separation of powers, federalism and freedom itself.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.

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