Activist Judges
Posted on Feb 22, 2012 by Trevor in Politics
Whenever a court or a judge strikes down a popular piece of legislation, it’s pretty common to hear political pundits (or the people who parrot their talking points) complain about “activist judges”, a.k.a. “elites who overturn the will of the people”. However, these same people will often turn around the next week and praise similar activities by the judicial branch because they have “upheld the Constitution”. Wise observers of this phenomenon quip that the best definition of “activist judge” is “a judge that deems my legislation of choice to be unconstitutional.” Liberals do it and conservatives do it.
Here’s the thing. The United States is not technically a democracy. It is a constitutional republic. And we have three branches of government with checks and balances. The duty of the judicial branch (i.e. the court system) is to render a decision on the constitutionality of actions taken by the other two branches (the executive and the legislative). No matter how many people vote for a ballot initiative, now matter how many in Congress support a piece of legislation, if it is unconstitutional, then the courts are obligated to strike it down.
People often complain that the will of the people is being overturned. So be it. The courts do not exist to rubber stamp unconstitutional laws. They exist to protect rights. If a majority of the residents of a county approve a measure imposing Sharia Law, this is a violation of civil rights, which is unconstitutional, and therefore it must be overturned. If the residents of a state pass a ballot initiative that forces Mormons to marry people of other faiths in their temples, this is a violation of civil rights, which is unconstitutional, and therefor it must be overturned. If the president declares war on Canada, this is a violation of the duties of the executive branch according to the Constitution, and therefore the president’s decree must be overturned. If a state congress establishes a law preventing interracial marriages, this is a violation of civil rights, which is unconstitutional, and therefore it must be overturned. You get the idea.
Of course, whether a law or measure is unconstitutional is not always black-and-white, and public sentiment can affect whether a higher court decides to listen to an appeal of a lower court’s ruling. It’s sometimes messy. But the next time you consider complaining about “activist judges” or “judicial activism”, remember that we live under a government that is designed to protect the rights of the minority against the tyranny of the majority.
