Grand questions like those of tyranny and anarchy rarely present themselves in royal attire, but, instead, appear in humble garb. I wish to address the constitutional issue of the separation and balance of powers in our tripartite structure of government, but I will address it in humble dress.
Although paternity suits have long been an element of the legal landscape,1 until relatively recently when a court was called upon to determine whether a man was the father of a particular child, the court had to rely on little more than the testimony of the mother.2 Even with the advent of blood tests, paternity could not be proved with certainty. The process of determining paternity was subject to substantial unreliability in method and inaccuracy in results. Moreover, the law has sometimes had difficulty adapting to a changing scientific landscape.3 The consequences of inaccuracy in paternity matters can be significant to a putative father. Not only may he be required to make child support payments, but his life will be involved with the lives of the child and the child's mother.4
The Alabama Legislature recognized that there had been certain advancements in genetic science.5 With the advent of DNA testing, it became possible to determine with virtual certainty whether a particular man is a particular child's father.6 The Alabama Legislature therefore enacted a statute that provided that anyone alleged to be a child's father would be permitted to undergo DNA testing and to compel the mother and child to undergo DNA testing to establish evidence of paternity.7 Because DNA testing is very accurate, it ordinarily would be dispositive of a paternity case.8 For paternity decisions that had already been made, the Legislature provided a window of opportunity for a man who had already been adjudicated the father of a particular child to reopen the case and to have this DNA evidence presented.9 What the Alabama Legislature did, then, was to create a statutory means of altering a court decision.
Before continuing discussion of this paternity statute, it is important to put it in a constitutional context. I recall attending a judicial conference at which a judge on the panel said, "You know, it's wonderful being a judge and knowing that all you have to do all day is what you want to do." I turned to the judge seated next to me in the audience; we agreed that, as judges, we often have do things that we do not want to do. But the difference in perspectives between the judge on the panel and the judge seated beside me says something about two judicial philosophies: the judicial activist philosophy and the judicial textualist (or restraint) philosophy.
When I was a candidate for the Alabama Supreme Court, my opponent and I participated in a debate. We were both asked what are the most difficult cases to decide. My opponent said that the most difficult cases to decide are those where the legislature had made a mistake and he had to correct it. 1 think this statement is representative of a judicial activist philosophy; it says something about the speaker's view of the role of a judge. The suggestion embodied in the statement is that if the legislature does not do the right thing, a judge should correct it and get the right thing done. This end justifies the judge in performing a function entrusted by the constitution to another -the legislative -branch of government, namely, the amendment of legislation.10
It is a struggle to meaningfully define these terms: activist and textualist. In an effort to be fair, I will give each its own positive spin. A judicial activist would say that it is the job of a judge to do what is right. A judicial textualist would say that it is the job of the judge to do what the law requires.11 One of these philosophies, the one that requires adherence to the text of the constitution or other law, is called for by the Constitution.
Attorneys probably can recall from their law school days an exchange that occurred when the professor was discussing a case and a student said something like, "But, professor, that's not fair. …