Well last night was Demagogues on Display “Justice Sunday II”, at which some of the most prominent religious right leaders – James Dobson, William Donohue, Tony Perkins, etc – threw red meat to their followers by railing at those evil judges out to destroy everything good and decent in America. Along the way they displayed some highly dishonest rhetoric. Like this:

Dobson evoked the framers of the Constitution, saying: “These activist, unelected judges believe they know better than the American people about the direction the country should go. The framers of our great nation did not intend for the courts to have absolute and final power over us.”

Note the subtle change from the first part of this sentence to the second. Of course the founders did not intend for the courts to have “absolute and final power over us”, but they did intend for the courts to have the power to void legislation that was contrary to the Constitution even if that legislation represented the judgement of the American people. And whenever they do so, this amounts to “unelected judges” voiding legislation that expresses the “will of the people” through their elected representatives. The fact that judges are unelected and have the power to void democratically-passed legislation certainly was intended by the founders because they knew that majorities were every bit as prone to violating liberty, probably more so, than appointed officials. The founders took the position that the executive and legislative branches, because they held the power of the military and the purse respectively, were the greatest risk to liberty and to the principles found in the Constitution and they set out to balance that risk by giving the judiciary the power, independent of the ebbs and flows of public opinion, to strike down legislation that oversteps the boundaries of executive and legislative power found in the Constitution. You can see their position clearly expressed in Federalist 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

I would argue that our primary complaint against the courts ought to be that they do not exercise this authority nearly often enough, not that they are too “activist”. They have allowed the executive and legislative branches to vastly expand the scope of their authority by abstracting beyond all possible meaning the various powers granted to those branches in the Constitution. They have rubber stamped such abstractions as allowing the interstate commerce clause to justify legislation that regulates activities that are neither interstate nor commerce (and their recent and very mild attempts to reign in such abstraction, as in Lopez and Morrison, have brought a strong rebuke from Senator Specter).

So the real problem, in my view, is not that the courts have been too “activist”, but that they have not been activist enough in enforcing the limitations on executive and legislative authority found in the Constitution. Through such fictions as the “presumption of constitutionality” and the “rational basis” test, we have allowed the dramatic expansion of governmental power far beyond any boundaries that could be justified by reference to the text or history of the Constitution. Perhaps it’s time for the judges to host a meeting like this complaining of “legislative activism”.