Law at the Jesus Creed: David Opderbeck 2

Lawbook.jpgI announced two weeks back that we are beginning a new series with David Opderbeck, a professor of law. He will educate us on law — should be fun.

Christians and “Judicial Activism”:  Viva la Revolucíon?

There are few hotter flashpoints in the culture wars than the question of “judicial activism.”  For Christians, the question perhaps reached a boiling point in a famous (or infamous) essay by Chuck Colson, published in the journal First Things in 1996, in which Colson stated:

In America today, we have very nearly reached the completion of a long process I can only describe as the systematic usurpation of ultimate political power by the American judiciary–a usurpation that compels evangelical Christians and, indeed, all believers to ask sobering questions about the moral legitimacy of the current political order and our allegiance to it.

Colson suggested that if judicial activism continued unabated, Christians would be forced to engage in increasing acts of resistance, including active civil disobedience and perhaps even armed violence, but here are the questions first:

What do you think:  What role should judges play in a democratic society?  How should Christians living in democracies respond when judges shape the law in ways that seem to conflict with Christian values?

Colson continues…


But would even active disobedience be
effective against our current judicial state? When peaceable means and limited
civil disobedience fail–at least according to the Protestant theologians [John]
Knox and [Samuel] Rutherford–revolution can be justified from a Christian viewpoint.

 Thankfully, at the end of his essay, Colson acknowledged
that the tipping point towards military revolt had not yet been reached.  Yeoman evangelicals were able to return their
pitchforks, muskets and torches to the garage for the time being.  Yet Colson’s anger at what he perceived
as a judicial usurpation of democracy continues to simmer in conservative

Christian circles.

In this post, I’d like to explore these questions:  What is ‘judicial activism?”  Is “judicial activism” something Christians
should fear? 

It’s common in politically conservative circles to argue
that “judges should apply the law, not make law.”  Conservatives worry that judges no longer feel constrained
by the meaning of the legal texts, such as the U.S. Constitution, that govern
the cases they are deciding.  Since
federal judges are not elected and are appointed for life, they argue, this
removes control over the government from the hands of the people.

This basic concern is not entirely unfounded.  Perhaps the paradigmatic example of
this problem is the Supreme Court’s opinion in Griswold
v. Connecticut
, a case involving a challenge to a Connecticut statute that
banned the provision of contraceptives to married couples. 

Although the Connecticut statute seems absurd, there is
nothing in the Constitution that would explicitly prohibit a state legislature
from enacting such a law. 
Nevertheless, the Court stated that the “specific guarantees in the Bill
of Rights have penumbras, formed by emanations from those guarantees that help
give them life and substance.”  One
of these penumbral rights, according to the Court, is a broad, general right to
“privacy.”  The Court found that
the Connecticut contraception statute was an unconstitutional violation of the
right to privacy.  This laid the
analytical groundwork for later constitutional challenges to other state laws
involving sexuality, including the right to abortion articulated in Roe
v. Wade

Whatever one ultimately thinks about the constitutional
right to privacy, it’s reasonable, I think, to be concerned about judges
invalidating state laws based only on “penumbras formed by emanations.”  It’s fair to suggest that law should be
grounded in text, precedent and history, rather than divined from “penumbras.”

At the same time, however, it’s not true that the judicial
role is always and only to “apply” laws enacted by democratically elected legislatures.  In fact, much of the law that governs
our everyday activities – including the law of contracts, property, torts, and
criminal law – has its roots in the “common law,” which is a system of judge-made
law.  In the traditional formalist
/ natural law vein, the judge’s role regarding the common law was to discern
and codify legal principles evident in the order of nature.  I suspect that this historic practice
vests more authority in judges than most conservatives today would appreciate.

Moreover, judges must “interpret” constitutional, statutory
and regulatory law.  An act of
“interpretation” is never merely passive, as reader-response theory and other
contemporary hermeneutical models demonstrate.  Although some judges purport to be “strict
constructionists,” we can question whether there really ever is such a thing as
“strict construction” of any received text (as our frequent debates about
Biblical hermeneutics attest!).

Finally, there is a sense in which judges properly stand in
judgment over legislative and regulatory law, in that judges often must
evaluate whether these subsidiary norms comport with constitutional law.  Supporters of this concept of “judicial
review,” which was articulated in the famous 1803 Supreme Court case of Marbury

v. Madison, argue that this power provides an important check against
executive and legislative tyranny. 
This is particularly significant, they suggest, when the issue involves
historically disenfranchised or oppressed minorities, such as in the historic
school desegregation case of Brown
v. Board of Education

"Venema, Dennis; McKnight, Scott. Adam and the Genome: Reading Scripture after Genetic Science. Baker, 2017.Giberson, ..."

Thanks To Deborah Haarsma

The Death Of The Church: 1
"Easiest thing is to go the Biologos site, click resources, the recommended books."

Thanks To Deborah Haarsma
"A well considered and well written article which also applies in Britain, but just one ..."

The Death Of The Church: 1

Browse Our Archives

Follow Us!

What Are Your Thoughts?leave a comment
  • RJS

    Fascinating stuff – the use of examples from both desegregation and abortion is particularly thought provoking. Well you only mentioned desegregation at the bottom – but this led me to thinking about judicial involvement in a number of areas. Another complex issue to wrestle with.

  • Scot McKnight

    David, I don’t know law so I’m so thankful for this series you are doing. Good stuff. A couple of comments:
    It is unhelpful for Colson to turn everything into apocalyptic warning; this seems to be one of his characteristics as seen now in the Manhattan Declaration, a sound set of statements buttoned up with lots of apocalyptic rhetoric.
    The most important way to deal with this so-called judicial activism is a good clear piece of writing that shows major departures from historical precedent and past judicial decisions. Are things changing that much? David, perhaps you could answer this.
    Overall, I respect the Supreme Court justice and pray and hope they do their job well. I don’t see judicial decisions as legislating morality because as a Christian morality is shaped by Jesus and the Bible and the Church tradition and not by a justice’s ruling.

  • Michael Bauman

    The problem is enormous and acute. Unless rigidly bounded by original intent and strict construction, I don’t see how any piece of modern legislation could be written so carefully and precisely that some determined judge could not bend it to his or her own ends.
    In this regard, I think of Cardinal Richelieu, who said “If you give me six sentences from the most innocent of men, I will find something in them with which to hang him.” Precise articulation cannot withstand that sort of determination. We’ll have to find an answer somewhere else. But I do not know where.

  • While I once respected Colson as an advocate for prison reform, over time he seems to have gone off a deep end. This whole idea of judicial activism is one of perception. Laws must be interpreted to be applied. The Constitution is not straightforward at every point, and it is not designed to cover every eventuality. Courts have made important “activist” decisions — like Brown vs. Board of Education. Would we rather have legal segregation in the country? It was the Courts that overturned bans on interracial marriage. Do we really want a country where Barack Obama’s parents were breaking the law in many states when they were married.
    Unfortunately, rhetoric like Colson’s is going to lead to violence — of the Timothy McVeigh type.

  • Randy

    I support and deeply appreciate Charles Colson’s work with Prison Fellowship, but when I read the comments that David cites from 1996 [in 1996], I could only laugh about Colson, Nixon’s hatchet man all the way through Watergate, complaining about threats to the constitution. Even as a forgiven Christian, he was not the best person to publicly make those comments.
    Regarding judicial activism per se, the discussion has to cut both ways. On the current court, Scalia and Alito have seemed no less willing to trim law to fit their convictions than the liberals they decry. In which case we end up with a battle over power, which is, I believe, where we are.
    One of the best witty (in the best sense) responses I ever read, came in the January 1997 “Letters” in response to the First Things edition that David mentions.
    Randy Gabrielse

  • T

    Thanks for raising this issue. My biggest gripe in this area (as a lawyer and a Christian) is that “the solution” that I often here within evangelical circles is some kind of strict constructionist jurisprudence that you mention whereby judges can supposedly just follow the text of the law or constitution, as if no reading between (and behind, and after) the lines isn’t often necessary and desirable for “judges” to do. Some act like if one can read a stop-sign, that’s really all we need for a good judge. There is, whether we like it or not, a great deal of nuance and judgment necessary in the job. Original intent is good to know, but it’s no silver bullet, any more than historical studies of the scriptures end all doctrinal conflict. Now, every decision that we dislike is “judicial activism.”

  • Rick

    “Now, every decision that we dislike is “judicial activism.”
    So you don’t think there is a problem at all?

  • Diane

    I find it disturbing that Colson would mention armed revolution in a Christian context.

  • Diane: “I find it disturbing that Colson would mention armed revolution in a Christian context.”
    Me too. Are we to engange in voilence simply becasue our democracy isn’t what we expect? Since when was democracy a fundemental christian tenet? And if it was, since when was voilence the appropriate means for achieving it.
    The line of argument comes crashing to a halt for me when folks start advocating (or suggesting) violent action.

  • Brian

    A related issue is the shrinking role of the legislature. I suspect that there are many issues on which the legislature passes the buck because of political pressure and fear of voters. The buck gets passed either to the courts by way of judicial activism, or to the presidency by way of executive orders. We need a stronger legislature that stands up to both the courts and the executive branch and insists on carrying its own weight in making law.

  • Personally, I think “judicial activism” is largely a myth.
    I don’t mean that there aren’t examples of judicial actions that go beyond their appropriate boundaries. I mean that the term is almost universally used by only one pole of the conservative/liberal divide, and it is used as if those of the “other” side are exercising biases that the one’s proclaiming “activism” do not have. They act as if complete and total impartiality is not merely a goal to strive towards, but is something that is entirely possible if only one leaves their biases aside. I submit that this is a myth. Everyone has biases. Often ones that they are not fully aware of. These biases inevitably come into the decision-making process. This happens to both conservatives and liberals.

  • EricG

    Agreed with T’s comments.
    Its interesting that Roe/Griswald grew out of the same sort of “substantive due process” type of argument that had been used by a conservative Supreme Court to knock down New Deal legislation. This amounted to such judicial over-reaching that Roosevelt tried to expand the number of justices. Some believe that this threat led to one justice changing his vote (the “switch in time that saved nine”). Similar sort of legal argument, same sort of political issues.
    There is a lot to be said about an independent judiciary as a check on the other branches and as a defender of fundamental rights and minorities. Otherwise you’ve got systems that are even *more* political — legislatures, executive — making all decisions. And the judiciary does not have guns or enforcement mechanisms like the other branches. It is very dangerous to seek to reduce the independence of the judiciary, no matter how bad some of its decisions are.

  • ChrisB

    “there is a sense in which judges properly stand in judgment over legislative and regulatory law, in that judges often must evaluate whether these subsidiary norms comport with constitutional law.”
    Absolutely. But sometimes they judge our laws by standards other than the constitution — Lawrence v Texas is a recent, egregious example.
    Opponents of the strict constructionist approach fail to realize that a “living” constitution, or one interpreted by whatever judges say our societal mores currently are, offers you no protections and the government no boundaries.

  • I did a took a graduate seminar history class on church and state issues back in graduate school. My paper was on the incorporation of the 1st Amendment by the 14th Amendment. I’ve been fascinated by these conversations ever since.
    One question I have, David, is the role of common law as it emerged in from the English system. Is it something distinct from either formalism or realism? Aren’t present mores and practices part of what the courts try to factor into decisions? Some economic historians of I’ve read credit the adaptability created by common law as a key element in the emergence of English-style market economies.
    Thanks for this series.

  • Randy

    Perhaps this is tangential, but then perhaps it is not.
    Regarding “rule of law” issues and the courts. During the last Bush Administration I found it fascinating to watch the administration loudly proclaim “rule of law” when enforcing that law against people it deemed dangerous or criminal, or when saying in effect “we can’t help you,” while they used every tool at their disposal — and some creative new ones — to shield themselves and those they supported from the law (Ex. order, Executive privilege, “signing statements,” investigation of leaks, secrecy, etc.) — Who remembers Dick Cheney’s gathering of Energy CEOS early on and keeping of that secret. Generally, I believe the courts did a good to excellent job of limiting the protections they built up.
    Randy Gabrielse

  • dopderbeck

    Great discussion so far. I’ll lay a couple more cards on the table and say that I think “law” must be grounded in text, history, and culture, but I don’t find “originalism” persuasive.
    First, at the meta-level, I disagree with the notion that originalism is necessary to secure or effective at securing the rule of law. The idea that the community must continually interpret and apply its foundational texts doesn’t render the foundational texts irrelevant. “Originalism or irrelvance” is a false binary, both in Constitutional interpretation and Biblical interpretation. And as Randy(#15) notes, the rule of law arguably has been undermined by purported originalists in the past decade probably more than by anyone else. (A good book here: Cass Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts are Bad for America.)
    Second, at a more granular level, I think originalism relies on an unsustainable concept of authorial intent. I’m not a radical postmodernist — I do believe authors have intentions — I think it’s naive to assume that a univocal “original intent” can be imputed to any text. All texts are “living” texts insofar as they are taken up and responded to by different communities of readers.
    Finally, at the general level of Constitutional intent, I don’t believe the intention behind establishing a constitutional democratic republic is for the founding documents to serve as detailed regulatory legislation. Such documents state broad general principles that have to be fleshed out diachronically through experience.

  • dopderbeck

    A follow up point on Michael’s (#14) question about the common law and social norms: yes, in many areas the common law looks to existing social norms to elucidate what is reasonable. One example is “evidence of custom.” Customary practice can sometimes be used to clarify ambiguous terms in contracts, and custom also factors into what constitutes “reasonable care” in tort cases. (For a fascinating look at how custom interacts with legal standards, see James Gibson, Doctrinal Feedback and (Un)Reasonable Care). This is one of the reasons the realists argued that the common law is really all about practical politics rather than first principles. It’s also significant for law-and-economics, because deferring to custom is effectively a way of deferring to private ordering, i.e. markets.
    All of this relates to a related, fascinating, question: does law shape social norms, or do social norms shape law, or do what extent do law and social norms shape each other? This is another point of departure for me from constitutional originalism. I don’t think we can (or should) avoid the fact that “law” and social norms are overlapping and to some extent indistinct categories. Texts have meaning, but they don’t stand outside the community of norms to which they relate.

  • T

    First, totally agree with David in comment 16 and 17.
    Second: Rick,
    It’s not that there are no problems with judicial practice in this country. I’ve read many a decision (Roe v. Wade was one) written from the judicial “left” and thought, “What in the world does this reasoning have to do with the Constitution?” At the same time, the body of decisions from conservative justices that have stripped the Constitution of much of its strength, particularly but not uniquely in the name of the war on drugs, is shocking and saddening, but evangelicals don’t call that “judicial activism” because the Church generally approves of the policy goals being served by those decisions (like the war on drugs).
    As an example of the problems on the right, Robert Bork famously referred to the Ninth Amendment as an “inkblot” in order to justify his unwillingness to ever rule in favor of enforcing a right not specifically enumerated in the Constititution (thereby directly contradicting the intent and language of that amendment). Scalia has a similar view of that amendment. The very folks who should be defending the permanent relevance of the 9th, as originalists, don’t do so because they are unwilling to go beyond the letter to the spirit even though the letter expressly tells them to do so. So they’re willing to lay down their judicial duty if they can’t settle a meaning by original intent alone. In this and other ways, the right can and has been just as unfaithful to the Constitution as the left, but in different ways. This is the surprising and ironic side of what is called “strict constructionist” jurisprudence. Similar to the Pharisees and Sadducees, it is possible to have a high view, even a strict view, of the law, and totally miss its wisdom and intent and even act contrary to it. It belittles the necessity and importance of the judicial task to say, as the evangelical community has been prone to say in unison, “We need to stop judicial activism and get more strict constructionists on the bench.” Interpreting is hard work sometimes. Strict constructionism, as I’ve seen it play out, is no silver bullet.

  • EricG

    Randy — I don’t think your point is tangential at all. Its a very good example of why we need an independent judiciary. Its a concern at the core of this issue.
    Also agree fully with David’s (#16) points.

  • Bill

    I suspect the discussion comes down to what we mean by the term “activist?” On the other hand the term is so value laden that it becomes meaningless and really does not have a place in a discussion except as a code word to be used by conservatives (and I resist using conservative and evangelical in the same sentence – while respecting Colson’s work immensely he does not speak for evangelicals as evangelicals are not and never should be defined as holding to a conservative or a liberal political/world view stance as our foundation does not contain such a split). American judges are “activist” by definition as they were designed to be the key operators in a system that has as its goal the expeditious and economic resolution of disputes and not the dispensing of justice or even for that matter ensuring equity among the disputants.

  • ChrisB

    Showing that some strict constructionists are hypocrits doesn’t mean the philosophy isn’t sounds.

  • Mich

    Everyone–left and right–loves judicial activism until the Court allows or rejects law you believe is “right.” Case in point, I didn’t her conservatives protesting the suspension of habeas corpus by the Bush administration and the left is just as bad. Does Colson really believe the Gospel lived out demands armed insurrection? I wonder what he would have thought of this when he served in the White House?

  • Ben Wheaton

    Re: Bob Robinson’s comment:
    One of the most irritating rhetorical tropes that I have heard recently is the notion that harsh rhetoric will lead to violence. Bob Robinson is a prime example: Colson bashing activist courts? Timothy McVeigh is next! Which hearkens back to the ridiculous attempt of some in 1995 to pin the McVeigh bombing on certain right-wing talk show hosts, which was as odious then as it is now. It is an attempt to discredit and shut down your opponent that has no place in a civilized society. Period.
    And then we have someone on Sojourners recently saying that, while of course they believe in free speech, there must be some way of making their political foes pay for their intemperate speech. Talk about your illiberal Liberalism.

  • T

    Scalia and Bork aren’t merely a couple of hypocrites on the fringe of originalist/strict constructionist approach to law. Scalia in particular is the human embodiment of the supposed ideal and has a lifetime appointment to the highest court. Don’t get me wrong, I don’t think original intent is or should be irrelevant but Scalia’s brand of strict constructionism often would prohibit judicial resolution of the most common sense problems, as well as ignore the spirit and letter of the 9th amendment. I’m using those examples because there is insufficient space to go into more detail. David has done a good job introducing alternative and wise approaches to strict constructionism. My point is that the problems of American jurisprudence are not merely a problem that will be solved by getting more conservative/strict constructionist judges, especially as those approaches have played themselves out on the highest court.

  • Scot McKnight

    Ben Wheaton’s comment referring to Bob Robinson is actually referring to Bob Cornwall.

  • Ben Wheaton

    Sorry! I meant Bob Cornwall.

  • Ben, my comment regarding Timothy McVeigh is given in regard to Colson’s rhetoric about the possible need for armed revolt. TO think that we are even close to a place where armed revolt is considered is beyond me, and to suggest that we should start considering it is problematic.
    I am concerned as well by comments by others — beyond Colson — calling for/praying for the death of President Obama (Wiley Drake – former 2nd VP of the SBC), as well as earlier requests of God that particular supreme court justices die (can’t remember if that was Falwell or Robertson).
    Do you not see that there is a problem here?

  • Ben Wheaton

    @ Bob Cornwall:
    No. I do not see that there is a problem. Drake and company are nobodies, and there have been no serious moves towards armed revolt or anything like it. Colson has not said anything related to armed revolt against Obama. Until you can come up with something more concrete than the hunches built upon your prejudices, I will interpret your words as attempts to bully your opponents into submission.

  • I go back to the creation mandate of filling the earth and exercising dominion. That includes the cultural mandate to create a world in which eikons individually and corporately work for the greatest shalom (healthy relationships with God, others, and creation; long life; health; well-being; safety, etc.)The two great commandments (loving God, loving neighbor) are the core ethical imperatives.
    Sin entered the world and added to our creation mandate is the redemption mandate. Participation in God’s redeeming work is now added to … not put in place of … the creation mandate. Two elements to the redemption mandate are “loving one another” … being a community that gives evidence of the Kingdom … and the Great Commission of drawing others in. But these are all done in the context of our creation mandate to exercise dominion over the earth.
    Too much of the Anabaptist approach, to me, feels incomplete. Refusal to participate in creating human dominion that creates shalom, except in a mode of alternative protest, is not truly participating in the creation mandate.
    The challenge is how to participate. Moral suasion of others through example and dialog seems to me to be the primary means of building a more wholesome society. In extreme cases, protest and civil disobedience may be necessary. That does not mean making everyone a Christian. One must simply persuade enough people of the merits of one’s position for that position to become law. That Christians enter the market place and persuade others is not different than Jews, Muslims, and secularists bring their morals to bear in the public debate. Thus, when a law comes into effect that coincides with what Christians believe, it is not the church imposing its views on the society. It is the church having a role in the formation of the morality of citizens who in turn shape their society. The whole of idea of Christians imposing their will on others is a bit of a straw man.

  • Brian

    I know I am late to this conversation, but I have two comments.
    One problem I have with this whole conversation is that far too many “lay” people do not have the training to form an educated opinion. How many Democrats complain about Bush v. Gore and how many Republicans say the Court got it right with no understanding of how the Court arrived at its decision. As an attorney who took an election law class, I would have to go back and spend a few hours looking at the case (and the cited precedents) before I would feel comfortable discussing it. The problem is that the “lay” person is outcome oriented rather than process oriented and they applaud outcomes they like and disdain outcomes they don’t like. One recent example is the recent case out of California and the Ninth Circuit involving the Pledge of Allegiance. The court rejected the case because the father did not have standing to bring the case. Evangelicals love the outcome because the Pledge is still “legal” and they don’t even realize that the Court did not consider the question. The media does not help because their headlines and articles are outcome driven and this decision had headlines like “Court rules in favor of Pledge.”
    Daved, in post 16 you said:
    “Finally, at the general level of Constitutional intent, I don’t believe the intention behind establishing a constitutional democratic republic is for the founding documents to serve as detailed regulatory legislation. Such documents state broad general principles that have to be fleshed out diachronically through experience.”
    Which provisions to you are merely principles rather than regulations which should be specifically followed in perpetuity until changed by Constitutional amendment? The qualifications for office of president? The functions of the legislature? If you agree that there are parts of the Constitution which are completely regulatory in nature into perpetuity, how do you distinguish them from the mere principles? Who decides?
    The problem I have with your comment is that there are large chunks of the Constitution which are obviously regulatory in nature and no one would challenge their perpetual operation. That being the case, I have to recognize that the entirety of the Constitution was enacted by a politcal body democratically representative of the entire populace and I am uncomfortable with any changes to the document by anything other than such a body.
    Overall, great presentation of the topic so far. Thanks for your writing.