Danger! Judicial Activists at Work!

Ken Connor

11/8/2007 3:56:19 PM - Ken Connor

There they go again!

Like termites gnawing away at the foundation of a building, judicial activists are eating away at the foundations of representative government in America. The damage they cause threatens our ability to govern ourselves through our elected representatives and reallocates the delicate balance of powers which our forefathers were careful to distribute among separate branches of government.

The most recent example of judges usurping legislative authority comes from Alaska where that state's Supreme Court, by a narrow 3-2 vote, struck down the 10 year old Parental Consent Act. The Act required girls 16 years and younger to get a parent's permission before receiving an abortion. Typically, such children can't go on a school field trip, join a sports team or attend an "R" rated movie without parental consent. Ah, but this case involved an attempt by the legislature to encroach on what the political left regards as its most sacred of rites, the right to abortion! And even though Alaska's House and Senate passed the Act by substantial majorities, it only took three paltry judges to torpedo the law. The judicial sages held that the Act encroached on a minor's "fundamental right to privacy" protected under the state's constitution. Parental rights, which the legislature sought to protect, were jettisoned by the Court. The Court held that a minor's decision to abort, unlike all other medical decisions, cannot be hindered by a parental "veto power."

Never mind that Alaska's constitution doesn't mention the right to an abortion anywhere in its text. And never mind that the U.S. Supreme Court (comprised of a majority of judicial activists who genuflect at the altar of abortion) has approved parental consent statutes in other states. Of course, it is the parents of the minor child—not the judges of Alaska's Supreme Court—that will have to deal with the emotional and physical trauma of the child's decision to kill the baby resident within her womb. And—God forbid—if the procedure goes awry, it is the parents, not the judges, who will have to pay the medical bills for the costs of correcting the error. Nonetheless, the right to abort—even by a child who has barely reached estrus—trumps all. And it is not to be encroached without undergoing strict scrutiny by the high priests of radical feminism.

These potentates of privacy have incredible powers of divination. They are capable of discovering "emanations from penumbras" that are invisible to legislators and executives. They discern meanings in words that are incomprehensible to other readers. Indeed, they have the capacity to infuse words with new meanings that would boggle the mind of any linguist.

It's amazing what one can accomplish with a law degree, a black robe and limited accountability. And, therein, lies the problem.

Increasingly, we the people are being ruled, not by our readily accountable elected officials, but by unelected jurists with limited accountability. As a result, our constitutional republic is rapidly being transformed into a judicial oligarchy in which the judicial branch of government is increasingly becoming more equal than the others.

America's Founding Fathers never intended such a result. Alexander Hamilton and James Madison wrote in Federalist No. 78 that, in a government characterized by separation of powers, "…the judiciary…will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive…holds the sword of the community. The legislature, not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary…may truly be said to have neither FORCE nor WILL, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

The founders, thus, envisioned the judiciary as the "weakest of the three departments of power", thereby posing the weakest threat to our liberties. Much has changed since our Constitution was adopted, however, and the judiciary, having arrogated unto itself powers rightly belonging to the executive and legislative branches, currently represents the biggest threat among the branches to our liberties. Hamilton and Madison acknowledged this threat by stating, "[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers."

When judges make law from the bench, they short circuit the democratic process. Even if the end result appears to be a desirable outcome, it comes at the expense of representative government. In a democracy, the process is no less important than the product. Robert Bork in his book, The Tempting of America, observed, "The democratic integrity of law…depends entirely upon the degree to which its processes are legitimate…. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy."

Sadly, executives and legislators have been complicit in this accretion of power in the judiciary. In the politically charged environment in which we live, elected officials have, all too often, been too willing to let the judicial branch of government make the final call on tough decisions involving political hot-potatoes—abortion, homosexual rights, prayer in schools, etc. They think that if the judicial branch makes the calls, the political branches will be immunized from the adverse political fall-out. Therefore, rather than acting to check and balance a run-away judiciary, the political branches all too often defer to imperious court rulings that misrepresent the requirements of state and federal constitutions.

The executive and legislative branches must act to end the hegemony that the judicial branch has acquired through distorting the requirements of the Constitution. Judges, no less than legislators and executives, are capable of running afoul of the Constitution. When they do, the other branches should act decisively to check their excesses. If they don't the people should replace them with those who will.

Nothing less than the future of our representative republic hangs in the balance.