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Checks and balances. A term first heard by many in our 8th grade civics class, if you are among the fortunate to ever receive any civics education.
The term has taken on great meaning in today’s political world, with activist judges juicing up the influence and role of America’s courts.
In an era filled with attack lawyers and with rhetoric assaulting us at every turn, how should Americans assess the proper role of the American judicial system?
BizPac Review suggests turning to America’s founding fathers for guidance. Our founders did not envision a court system that uses the country’s judicial process to create laws, or to allow the personal views of judges to encroach the legislative function. Rather, the founders created a republic in which elected representatives were to decide the important issues of the day.
Our founders wanted an independent and strong judiciary for our republic, but one with powers confined by the Constitution, the laws of Congress, and the legislatures.
For Americans, an important issue when we go to court is whether our case will be decided on the rule of law, or decided by a judge applying his/her own personal opinions to our actions.
Our country, designed to be a nation of laws not of men, deserves a judicial system that keeps any judge’s personal philosophy out of the legal system.
But some judges have trended in recent years to use the courts as an instrument of their will, to create law through judicial activism. Unfortunately, judicial activism often turns to judicial dictatorship, as the people’s Constitutional right to govern themselves dwindles under the arbitrary judgment of a relatively low number of judges.
Some judges hold that our Constitution is an “evolving” document, with no “static meaning”. Yet, the whole point of a written Constitution (from the days of the Magna Carta), the whole purpose of writing it down and fixing its meaning, was to render it impossible for later governments to twist the meaning of the laws to suit those in power at the time. The whole concept of the rule of law becomes meaningless when courts can impose on the language whatever meaning they wish, or decide legal issues based on their personal preferences, disregarding the original meaning of the written word.
The legislative branch is and has been the branch closest to the people. The way the U.S. system works is that if someone wants to enact a law, they need to get a legislature to pass it.
A central idea when our Republic was founded was to divide political power among three branches of government. This made sure that too much power was not exercised by any one branch. The legislature’s job was to write the laws. The executive’s job was to carry out the laws. The judiciary’s job was to interpret laws when laws conflicted– their job was not to re-write law and not to make an end run around the will of the people as expressed by their elected representatives.
Judicial restraint means the exercise of judicial duty that subordinates the private views of the judge to that which the law determines or permits. Judges must be duty-bound to not legislate from the bench. But more and more today, that’s not what we’re getting.
Thomas Jefferson warned about the tyranny of “runaway” judges. He found the prospect of judicial tyranny chilling, and insisted on retaining for legislatures the greater role within the divided powers. James Madison was even more concerned, saying that in the U.S. republic, “the legislative department derives superiority in our governments.”
To steer ourselves back on track with the U.S. Constitution, those in the legislative branch of government, who hold their positions by vote of the people, must reassert themselves and reign in judges who abuse their authority. This means using its confirmation authority to block the appointment of activist judges. It means stripping the American Bar Association of its special role in judicial selection. Congress should exercise its power to limit the jurisdiction of the courts, put the courts back within their constitutional boundaries, and stop the expansion of litigation in the federal court system.
As Edwin Meese has said, judicial activism has harmed virtually every aspect of public policy in America, allowing leftist politicians to accomplish much of their agenda not through democratic means in the legislative process, but through the use of the courts. “The courts have become the last hope for enacting the liberal agenda.”
The danger is rule by jurists with unchecked power, when their visions are to mold society to suit their own personal views of justice and morality. Our legislatures and Congress must act to return our country to constitutional government and the rule of law.
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