Academic journal article Policy Review

The Imperial Judiciary ... and What Congress Can Do about It

Academic journal article Policy Review

The Imperial Judiciary ... and What Congress Can Do about It

Article excerpt

Under the modern doctrine of judicial review, the federal judiciary can invalidate any state or federal law or policy it considers inconsistent with the U.S. Constitution. This doctrine gives unelected federal judges awesome power. Whenever these judges exceed their constitutional prerogative to inter- pret law and instead read their personal views and prejudices into the Constitution, the least democratic branch of government becomes its most powerful as well.

America's Founding Fathers created a democratic republic in which elected representatives were to decide the important issues of the day. In their view, the role of the judiciary, although crucial, was to interpret and clarify the law--not to make law. The Framers recognized the necessity of judicial restraint and the dangers of judicial activism. James Madison wrote in The Federalist Papers that to combine judicial power with executive and legisla- tive authority was "the very definition of tyranny,"judiciary to interpret the Constitution would lead to judicial supremacy. "It is a very dangerous doc- trine to consider the judges as the ultimate arbiters of all constitutional questions,""It is one which would place us under the despotism of an oligar- chy."

Unfortunately, the federal judiciary has strayed far beyond its proper func- tions, in many ways validating Jefferson's warnings about judicial power. In no other democracy in the world do unelected judges decide as many vital political issues as they do in America. We will never return the federal government to its proper role in our society until we return the federal judiciary to its proper role in our government.

Supreme Court decisions based on the Constitution cannot be reversed or altered, except by a constitutional amendment. Such decisions are virtually immune from presidential vetoes or congressional legislation. Abraham Lincoln warned of this in his First Inaugural Address when he said:

"[T]he candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."

When the most important social and moral issues are removed from the democratic process, citizens lose the political experience and moral education that come from resolving difficult issues and reaching a social consensus. President Reagan explained how judicial activism is incompatible with popular government:

"The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not--as it is not--will we have liberal courts or conservative courts? They knew that the courts, like the Constitu- tion itself, must not be liberal or conservative. The question was and is, will we have government by the people?" [Emphasis added.]

Judicial Excesses

When federal judges exceed their proper interpretive role, the result is not only infidelity to the Constitution, but very often poor public policy. Numerous cases illustrate the consequences of judicial activism and the harm it has caused our society. Activist court decisions have undermined nearly every aspect of public policy. Among the most egregious examples:

Allowing racial preferences and quotas. In United Steelworkers of America v. Weber (1979),the statute: "It shall be an unlawful employment practice for any employer . . . to discriminate against any individual because of his race, color, religion, sex, or national origin."Weber differently, racial preferences would not exist in the private sector today. The Weber decision is a classic example of how unelected government regulators and federal judges have diverted our civil-rights laws from a color-blind ideal to a complex and unfair system of racial and ethnic preferences and quotas that perpetuate bias and discrimination. …

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