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Jewish World Review Dec. 11, 2000 / 14 Kislev, 5761

David Limbaugh

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Judicial restraint
and ordered liberty


http://www.jewishworldreview.com -- IF THERE IS one lesson that screams out at us from the "election from hell," it is the importance of judicial restraint -- the connection between judicial restraint and ordered liberty. That's a fitting lesson, given the two candidates' radically different views regarding the role of our courts.

During the campaign, George Bush pledged that he would appoint strict constructionists to the federal courts. Al Gore, just as plainly, promised to appoint judges who shared his view that the Constitution was an evolving document.

For most people this is a hot-button issue primarily because of the abortion question. Conservatives have two problems with Roe v. Wade, the main Supreme Court case establishing a woman's qualified constitutional right to terminate her pregnancy. Of course, they believe abortion is morally wrong (putting aside here the various exceptions upon which there is no consensus of opinion). But also troubling to them is the way this "right" was established.

In restricting the states' powers to regulate abortion, the Supreme Court literally created a woman's constitutional right to privacy, when the Constitution was silent on the matter. Conservatives weren't surprised because activist courts -- especially the Warren Court -- had been legislating for years.

One of my political science professors argued that activist judges were not necessarily politically liberal and that strict constructionists were not necessarily politically conservative. Theoretically, he was correct, because it is possible to have an activist, conservative judge or a strict constructionist, liberal judge. But as a practical matter, the overwhelming majority of activist judges are political liberals.

Most conservatives don't believe in using the courts to make policy. They believe that under our system policymaking is the prerogative of the legislative and executive branches of government and that the judiciary should be relegated to interpreting the laws.

This is not just a hypertechnical distinction. The framers deliberately left the policymaking to the political branches because they are more accountable to the people.

Critics of justices such as Scalia and Thomas argue that if they had their way they would overturn, for example, Roe v. Wade. Such critics say that this would be a rank act of judicial activism. But it would not. A reversal of the case would merely restore the power to regulate abortion to the states.

An arguable example of politically conservative judicial activism would be for the court not only to reverse Roe v. Wade, but to hold that the Constitution outlaws abortion -- and any state law permitting it is void. The brilliant Alan Keyes might argue that this still wouldn't be judicial activism, because the Constitution's preamble makes clear that one of the purposes of the document is "to secure the blessings of liberty to ourselves and our posterity," and we can't achieve that purpose if we permit the unborn to be killed in the womb.

Regardless, the point is that conservatives don't advocate rewriting the Constitution from the bench. There are constitutionally prescribed methods for amending it, and judicial fiat isn't one of them.

There is a major philosophical difference between liberals and conservatives regarding the role of the judiciary, and it involves a great deal more than resolution of the abortion question, as terribly important as that is to both sides.

This election contest saga has brought into focus the horrors that can occur through judicial tyranny. When courts do not agree to limit themselves to their constitutionally assigned role they can totally undercut the social compact between the citizens and their government.

Were it not for the reluctant "intervention" of the United States Supreme Court, the activist Florida Supreme Court may have rewritten the Florida legislature's constitutionally authorized method for appointing presidential electors. In so doing they would have been changing the law after the fact and replacing it with new law that suited their desired result. They still may try.

As pro-life as I am, I hope that the post-election chaos will open more people's eyes to the other problems inherent in judicial activism. When judges rewrite laws and otherwise ignore the original intent of the Constitution they abdicate their role as the primary guardians of our freedoms, and become agents of their destruction. That's because the Constitution must remain as the unshakable anchor and guarantor of our liberties.

Unless the judiciary protects the integrity of the Constitution, the foundation of our liberties will be undermined and our liberties imperiled.



JWR contributor David Limbaugh is an attorney practicing in Cape Girardeau, Missouri, and a political analyst and commentator. Send your comments to him by clicking here.

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Up

12/06/00: The four years war
12/04/00: Debunking Gore myths
11/29/00: Defending the smaller principles
11/27/00: Albert O'Gore and the little people
11/22/00: Doing 'anything to win'
11/15/00: Enough is enough, Mr. Gore
11/13/00: Al Gore: Thy country or thyself?
11/08/00: Bill and Al: Your time is up
11/06/00:The impending Bush mandate
11/01/00: Can't stop thinkin' 'bout tomorrow
10/30/00: George: Give Gore the ball back
10/25/00: Mr. Gore: A few more questions
10/23/00: It's the big government, stupid
10/18/00: Gore's down, so will he panic?
10/16/00: We're fresh out of new Al Gores
10/11/00: Gore: Fuzzy math = dirty politics
10/10/00:Gore: Renaissance man or unbalanced?
10/04/00: Where have you been, Albert Jr.?
10/02/00: Clintonís fragmented presidency
09/27/00: Liberal media doth protest too much
09/25/00: AlGore: Turning dreams into nightmares
09/20/00: Something fishy's going on
09/18/00: It's the liberalism, stupid
09/13/00: An open letter to open-minded cynics
09/11/00: The virtues of going negative
09/06/00: On a mission for marriage
09/04/00: Al Gore's 'Trivial Pursuits'
08/30/00: Lieberman and the paradox of liberal 'tolerance'
08/28/00: A campaign divided against itself
08/23/00: Al Gore's trickle-down populism
08/21/00: Prosperity without a clue
08/16/00: AlGore can run but he can't hide
08/14/00: When hate speech is OK
08/09/00: Bush: The pundits' enigma
08/07/00: GOP convention: Live or Memorex?
08/02/00: The first attack dog
07/31/00: The Cheney taint?
07/26/00: The anti-gun bogeyman
07/24/00: The raging culture war
07/19/00: Is Hillary 'Good for the Jews'?
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07/12/00: Jacoby's raw deal
07/10/00: The perplexities of liberalism
07/05/00: Big Al and big oil
07/03/00: Partial-birth and total death
06/28/00: Some questions for you, Mr. Gore
06/26/00: Supreme Court assaults religious freedom
06/21/00: Waco: We are the jury
06/19/00: "Outrage" just doesn't quite cut it anymore!
06/14/00: Al Gore: Government's best friend
06/12/00: Say goodbye to medical privacy
06/07/00: Elian: Whose hands were tied?
06/05/00: Who, which, what is the real Al Gore?
06/01/00: Legacy-building idea for Clinton
05/30/00: Clinton: Above the law or not?
05/24/00: Not so fast, Hillary
05/22/00: Gore's risky, fear-mongering schemes
05/17/00: Can Bush risk pro-choice running mate?
05/15/00: Right to privacy, Clinton-style
05/10/00: Patrick Kennedy and his suit-happy fiddlers
05/08/00: Don't shoot Eddie Eagle
05/03/00: Congress caves to Clinton, again?
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04/10/00:The fraying of America
04/05/00: Noonan: End Clintonism now
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03/22/00: Media to Bush: Go left, young man
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03/13/00: Deifying of the center
03/08/00: The media, the establishment and the people
03/01/00: McCain's coalition-busting daggers in GOP's heart
02/28/00: Bush's silver lining in McMichigan
02/24/00: A conservative firewall, after all
02/22/00: Bush or four more of Clinton-Gore?
02/16/00: Substance trumps process
02/14/00: The campaign finance reform mirage
02/09/00: President McCain: End of the GOP as we know it?
02/07/00: From New Hampshire to South Carolina
02/02/00: SDI must fly
01/31/00: Veep gores Bradley
01/26/00: The issues gap
01/24/00: GOP: Exit, stage left
01/20/00: Nationalizing congressional elections
01/18/00: Do voters really prefer straight talk?
01/12/00: Media's McCain efforts may backfire
01/10/00: Conservative racism myth
01/05/00: Just one more year of Clintonian politics
01/03/00: McMedia?
12/27/99: Al Gore: Bullish on government
12/22/99: Bradley's full-court press
12/20/99: Bush: Rendering unto Caesar
12/15/99: Beltway media bias
12/13/99: White House ambulance chasing
12/08/99: Clinton's labor pains
12/06/99:The lust for power
12/01/99: In defense of liberty
11/29/99: Are Republicans obsolete?
11/24/99: Say you're sorry, Mr. President
11/22/99: Architects of victory
11/17/99: Trump's tax on freedom
11/15/99: GOP caves again
11/10/99: Triangulation and 'The Third Way'
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11/03/99: Keyes vs. media lapdogs
11/01/99: Signs of the times
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10/25/99: A matter of freedom
10/20/99: Clinton's mini-meltdown
10/18/99: Senate GOP shows statesmanship
10/13/99: Senate must reject nuclear treaty
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10/06/99: Jesse accidentally opens door for Pat
10/04/99: Clinton and his media enablers
09/29/99: Reagan: Big-tent conservatism
09/27/99: The Clinton/Gore taint?
09/22/99: Have gun (tragedy), will travel
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09/15/99: GOP must remain conservative
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09/10/99: Bush's education plan: Dubya confounds again
09/07/99: Pat, savior or spoiler?
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08/25/99: Dubyah's drug question: Not a hill to die on
08/23/99: Should Dubyah start buying soap ... for all that mud?
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08/09/99: Hillary: Threading the needle
08/04/99: What would you do?
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07/30/99: Hate Crimes Bill: Cynical Symbolism
07/26/99: Itís the 'moderates', stupid
07/21/99: JFK Jr. and Diana: the pain of privilege
07/19/99: Smith, Bush and the GOP
07/14/99: GOP must be a party of ideas
07/12/99: Gore's gender gap
07/08/99: Clintonís faustian bargain: our justice
07/06/99: The key to Bush's $36 million
06/30/99: Gore: a soda in every fountain
06/28/99: 'Sacred wall' or religious barrier?
06/23/99: GOP must lead in foreign policy
06/21/99: Crumbs of compassion
06/16/99: Compassionate conservatism: face-lift or body transplant?
06/10/99: Victory in Kosovo? Now What?

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