Jewish World Review Dec. 11, 2000 / 14 Kislev, 5761
and ordered liberty
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
Unless the judiciary protects the integrity of the Constitution, the
foundation of our liberties will be undermined and our liberties
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