curlymae29
01-12-2004, 05:51 PM
‘We the Judges’: How Judicial Activists Rewrite the Constitution
By David Brody
Congressional Correspondent
In a way, conservative scholars say this climate of judicial activism has been building for awhile.
CBN.com – WASHINGTON, D.C. — In our society today, there is a real and tangible concern about what is being called "judicial activism." Many conservative legal scholars say judges today are making absurd rulings based more on their liberal thinking than what the Constitution actually says. So how did we get to this point and what can be done about it?
The beginning of the United States Constitution reads, "We the People." But the way the courts have been ruling recently, many legal scholars say it could very easily read "We the Judges."
"The problem is very grave because what you've done is take away democratic control of the culture," said former Reagan Supreme Court nominee Judge Robert Bork.
Bork is leading the campaign against judicial activism. He is convinced that too many judges are making laws instead of interpreting them, and that's not what the Founding Fathers had in mind. "They are steadily enacting what you might call the liberal cultural agenda," he explained.
That agenda is front and center at the U.S. Supreme Court where they recently ruled that Americans basically have a constitutional right to commit sodomy. Experts who believe in original intent say that is nowhere in the Constitution.
And coming soon is the whole Pledge of Allegiance case where the words "under God" may be ruled unconstitutional as well. But perhaps the one case that still has legal scholars scratching their heads is the decision 30 years ago to legalize abortion.
Bork said, "Fifty-eight pages, no legal argument in it. You learn all about the Egyptians’ practice with respect to abortion. You learn about the English common law with respect to abortion. You learn about what the opinions of the American Medical Association are and all of a sudden, bang, there's a right to abortion."
In a way, conservative scholars say this climate of judicial activism has been building for awhile. They say go back to the early 1800's. The big case then was Marbury v. Madison. The Supreme Court ruled for the first time that a law passed by Congress was unconstitutional. The chief justice said at the time that it was the duty of the judicial branch to determine what the law is.
Fast-forward 50 years later to the infamous Dred Scott decision where the Supreme Court actually legitimized the spread of slavery. But it really was not until the 1960's that liberal judicial activism began to reach new heights. The Supreme Court chief justice was Earl Warren and under his court, prayer in schools was deemed unconstitutional. A year later, reading the Bible in public schools was gone too. The justices apparently thought that they both violated the First Amendment by establishing a certain religion.
"It's a titanic battle about the meaning and the interpretation of the Constitution," said Ralph Neas, head of the liberal group People for the American Way. He thinks the Warren court got it right in the 60's. It’s part of a philosophy that looks at the Constitution as a living, breathing document that needs to evolve with the times.
Neas said, "It's certainly not a stagnant document because the Founding Fathers could never have anticipated the changes in technology, the changes in the way of life and all the other things that have happened over our 200-plus years of history."
Bork said, "Well, that is one of the most preposterous tactics I've ever heard." Bork says you don't mess with the Constitution unless Congress and the American people want to change it.
"The only thing the court can point to is the actual principles in the Constitution. Now, if you say well, we'd like more Constitution principles added, we have the amendment process. You can add them by that means," Bork explained.
So what did the framers actually think? The answers are written down in history, in a collection of essays called "The Federalist Papers," where our Founding Fathers explained certain provisions in the Constitution.
Alexander Hamilton expressed his belief that the courts would have the least power of the three branches of government when he wrote that, "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution." And in 1820, Thomas Jefferson agreed with Hamilton on the judiciary's role, warning that, "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed."
Though they were political enemies, Hamilton and Jefferson agreed on this issue, and if they were alive today, they would probably call a press conference to clear all this up. Since that is not possible, CBN News went to a cemetery in Forest Glen, Maryland for answers. We found the gravesite of Daniel Carroll, one of the original signers of the Constitution. And two of his direct descendents were able to shed some light on what he might think of all this today.
"He would have been I think incensed that people's choices were not being respected," said Adam Carter. Adam and his dad Charles Caroll Carter are the 5th and 6th generation great grandsons of Daniel Caroll. The research they have done shows that he believed that the power rested with the people, not the judges. He also was instrumental in helping pass the First Amendment which allows for people to express their religion.
"The overriding principle clearly is freedom. That is the overriding American principle and that is what Daniel Carroll was striving for — freedom to practice religion that they were not able to enjoy," the younger Carter said.
Conservatives say that the freedom, and other principles outlined in the Constitution are in jeopardy today. That is why the battle in the Senate over President Bush's judicial nominees has become such a big deal. The President nominates a conservative Christian, only to be held up, or filibustered by liberal Democrats. It is not something that the descendants of Daniel Caroll say he would have been a fan of.
"I can't disagree with that. The idea that Catholics and Christians need not apply for federal judiciary posts is something that I don't think he would have ever tolerated," Adam Carter said.
But that view won't stop the debate over activism. "If we were all honest, we would probably say that both the conservatives and the liberals and everything in between were judicial activists," Neas said.
Judge Bork does not see it that way. He says it is about constitutional law being reinterpreted. "It's not intellectual, it's not the study of history, it's not the study of logic. What it is is politics. It's a left liberal version of politics," he said.
And so will the future be more about "'We the people?" or "We the judges?" The answer to that question will very much define the moral direction of America.
By David Brody
Congressional Correspondent
In a way, conservative scholars say this climate of judicial activism has been building for awhile.
CBN.com – WASHINGTON, D.C. — In our society today, there is a real and tangible concern about what is being called "judicial activism." Many conservative legal scholars say judges today are making absurd rulings based more on their liberal thinking than what the Constitution actually says. So how did we get to this point and what can be done about it?
The beginning of the United States Constitution reads, "We the People." But the way the courts have been ruling recently, many legal scholars say it could very easily read "We the Judges."
"The problem is very grave because what you've done is take away democratic control of the culture," said former Reagan Supreme Court nominee Judge Robert Bork.
Bork is leading the campaign against judicial activism. He is convinced that too many judges are making laws instead of interpreting them, and that's not what the Founding Fathers had in mind. "They are steadily enacting what you might call the liberal cultural agenda," he explained.
That agenda is front and center at the U.S. Supreme Court where they recently ruled that Americans basically have a constitutional right to commit sodomy. Experts who believe in original intent say that is nowhere in the Constitution.
And coming soon is the whole Pledge of Allegiance case where the words "under God" may be ruled unconstitutional as well. But perhaps the one case that still has legal scholars scratching their heads is the decision 30 years ago to legalize abortion.
Bork said, "Fifty-eight pages, no legal argument in it. You learn all about the Egyptians’ practice with respect to abortion. You learn about the English common law with respect to abortion. You learn about what the opinions of the American Medical Association are and all of a sudden, bang, there's a right to abortion."
In a way, conservative scholars say this climate of judicial activism has been building for awhile. They say go back to the early 1800's. The big case then was Marbury v. Madison. The Supreme Court ruled for the first time that a law passed by Congress was unconstitutional. The chief justice said at the time that it was the duty of the judicial branch to determine what the law is.
Fast-forward 50 years later to the infamous Dred Scott decision where the Supreme Court actually legitimized the spread of slavery. But it really was not until the 1960's that liberal judicial activism began to reach new heights. The Supreme Court chief justice was Earl Warren and under his court, prayer in schools was deemed unconstitutional. A year later, reading the Bible in public schools was gone too. The justices apparently thought that they both violated the First Amendment by establishing a certain religion.
"It's a titanic battle about the meaning and the interpretation of the Constitution," said Ralph Neas, head of the liberal group People for the American Way. He thinks the Warren court got it right in the 60's. It’s part of a philosophy that looks at the Constitution as a living, breathing document that needs to evolve with the times.
Neas said, "It's certainly not a stagnant document because the Founding Fathers could never have anticipated the changes in technology, the changes in the way of life and all the other things that have happened over our 200-plus years of history."
Bork said, "Well, that is one of the most preposterous tactics I've ever heard." Bork says you don't mess with the Constitution unless Congress and the American people want to change it.
"The only thing the court can point to is the actual principles in the Constitution. Now, if you say well, we'd like more Constitution principles added, we have the amendment process. You can add them by that means," Bork explained.
So what did the framers actually think? The answers are written down in history, in a collection of essays called "The Federalist Papers," where our Founding Fathers explained certain provisions in the Constitution.
Alexander Hamilton expressed his belief that the courts would have the least power of the three branches of government when he wrote that, "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution." And in 1820, Thomas Jefferson agreed with Hamilton on the judiciary's role, warning that, "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed."
Though they were political enemies, Hamilton and Jefferson agreed on this issue, and if they were alive today, they would probably call a press conference to clear all this up. Since that is not possible, CBN News went to a cemetery in Forest Glen, Maryland for answers. We found the gravesite of Daniel Carroll, one of the original signers of the Constitution. And two of his direct descendents were able to shed some light on what he might think of all this today.
"He would have been I think incensed that people's choices were not being respected," said Adam Carter. Adam and his dad Charles Caroll Carter are the 5th and 6th generation great grandsons of Daniel Caroll. The research they have done shows that he believed that the power rested with the people, not the judges. He also was instrumental in helping pass the First Amendment which allows for people to express their religion.
"The overriding principle clearly is freedom. That is the overriding American principle and that is what Daniel Carroll was striving for — freedom to practice religion that they were not able to enjoy," the younger Carter said.
Conservatives say that the freedom, and other principles outlined in the Constitution are in jeopardy today. That is why the battle in the Senate over President Bush's judicial nominees has become such a big deal. The President nominates a conservative Christian, only to be held up, or filibustered by liberal Democrats. It is not something that the descendants of Daniel Caroll say he would have been a fan of.
"I can't disagree with that. The idea that Catholics and Christians need not apply for federal judiciary posts is something that I don't think he would have ever tolerated," Adam Carter said.
But that view won't stop the debate over activism. "If we were all honest, we would probably say that both the conservatives and the liberals and everything in between were judicial activists," Neas said.
Judge Bork does not see it that way. He says it is about constitutional law being reinterpreted. "It's not intellectual, it's not the study of history, it's not the study of logic. What it is is politics. It's a left liberal version of politics," he said.
And so will the future be more about "'We the people?" or "We the judges?" The answer to that question will very much define the moral direction of America.