“There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, ‘Do justice, sir, do justice.’ Holmes stopped the carriage and reproved Hand: ‘That is not my job. It is my job to apply the Law.’” So goes the famous anecdote as relayed by Judge Robert Bork in his book, “The Tempting of America.” This scene aptly speaks to one of the greatest tensions in American jurisprudence today between two sides of thought: that of activist judges “doing justice” according to their own fleeting notions, and that of applying the law by looking to the text of the Constitution.
Justice Holmes raises a key point in understanding the scope of the judiciary: the proper role of a judge is not simply to “do justice,” but to do justice under the law. Judges are bound by law. They are bound by the Constitution and by the original objective public meaning of its text. Their job is to say what the law is, not what it ought to be. Decisions over what the law says are left to the people and their representatives — through the creation of new laws.
But many in today’s judiciary disregard the text of the Constitution in favor of interjecting their personal views of justice, policy preferences, “progress,” or “empathy.” They take upon themselves duties that lie solely in the scope of the people and the legislatures. This is judicial activism.
Conservatives and liberals alike are guilty of distorting the Constitution to fit their personal preferances and conceptions of “good” and “justice.” Those in both camps have a flawed tendency to equate “bad” with “unconstitutional” and “good” with “constitutional” without looking to the Constitution’s text for its actual meaning. The Ninth Circuit Court of Appeals is especially guilty of this.
Last week, the Ninth Circuit — the most liberal court in the land — reaffirmed its longstanding union with judicial activism when it upheld the decision of the California Supreme Court to throw out California’s Proposition 8, a citizen initiative amending the state constitution to define marriage as a union “between one man and one woman.” For the activists sitting on the court, laws prohibiting same-sex marriage do not conform to their conceptions of justice and are therefore unconstitutional.
The court found the constitutional violation in the fact that California changed their law to recognize same-sex marriage and then tried to change it back. The circuit’s opinion — to no one’s surprise — proclaimed Proposition 8 a “distinct constitutional violation” of the oft-cited Fourteenth Amendment’s Due Process and Equal Protection Clauses, though no such protection of marriage can be found in the actual text of the Constitution.
Their reasoning, if one can call it that, is that the people of California had no “legitimate reason” to enact such a law, despite going through all of the proper procedures. Translation: “We the elites on the Ninth Circuit can determine better than the people what the law ought to be. We have crafted a standard of justice, although it has no grounding in the Constitution, and you are required to meet it.” The ruling effectually transforms the Constitution into a “one-way ratchet” — once cranked in a single direction, it can never be turned back — that flies in the face of our founders’ vision.
The founders set up a government to deal with the limits of human nature — a government based on the rule of law. Because reason and experience proved that men, including those in office, could not be trusted to restrain themselves and their passions, they put institutions in place that would allow ambition to counteract ambition.
They set up independent branches of government with distinct powers. Each branch then would check the powers of the other branches in order to prevent tyranny in any of its many forms. The court’s limited role was to have, as Alexander Hamilton described in Federalist 78, “neither force nor will, but merely judgment.” They were to decide cases and render an impartial judgment according to the law. Anything beyond that was outside their proper limited powers.
Once judges usurp powers not granted to them, they throw this separation off balance and risk losing the stable rule of law to the fickle rule of men. Regardless of your beliefs regarding Proposition 8, to oppose it is to oppose American self-government.
When judges assume powers not granted to them and attempt to ensure “correct” political outcomes that the Constitution does not compel, they undermine the rule of law and the self-government that our laws ensure.
When they impart their own will into the Constitution instead of applying the law, they effectively render the people’s recourse to the Constitution void.
When they find protection for a “right” apart from the text of the highest law in the land, they assume powers that are not safe in the hands of fallen human beings. The activist judges on the Ninth Circuit have made a mockery of our judiciary, our constitution, and our civilizations’ fundamental knowledge about the nature of man.
