Sowell: Stop The Activist Judges
By Steven Osborne | Tuesday, November 9th, 2010 | Catch-All, PolicyNoted economist and political commentator Thomas Sowell has written an excellent article at the National Review Online in which he lays out the need for judicial reform.
The concept of Judicial Reform is not new, Christian Conservatives specifically, have been clamoring for years about the need for a reformation of the judiciary. However, the issue has not always been at the forefront of the American mind. The American people rarely pay attention to obscure court cases that do not seem to have an immediate effect on their lives.
Unfortunately, all too often the judiciary has had a disproportionate effect on the lives of the American people. Over the past 30 years the judiciary has gone out of its way to redefine social norms and expand the government’s power over private property.
Sowell states in his article that if judges are going to act like politicians, then the public should be able to vote them out, just as they would a politician. That is exactly what the voters in Iowa did on Tuesday. Three Iowa Supreme Court Justices were not retained by the people due to an activist ruling that redefined what constituted a marriage in the state of Iowa.
Perhaps calling up judges for retention votes is not such a bad idea. The election of judges is usually opposed by those who claim that the electoral process will stifle “judicial independence.” However, if we are all honest with ourselves, we will see that judges are not immune from political faction. Our fellow Virginian Thomas Jefferson agrees with me, he once made the observation that,
Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . and their power the more dangerous as they are in office for life and not responsible – as the other functionaries are – to the elective control.
Perhaps it is time for us to apply an “elective control.” Judges are human too, and power must be checked.
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About the author
Steven Osborne is a grassroots conservative activist from Central Virginia. He is currently furthering his education at Liberty University in Lynchburg, Virginia. In addition to writing for Bearing Drift he is also a columnist for the Christian Law Journal.
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9 Responses to "Sowell: Stop The Activist Judges"
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The subversion of the Constitution by judges including occasionally those on the Supreme Court is a very difficult problem to resolve since political removal other than impeachment has many issues itself. I tend to think the Tea Party emphasis on adherence to the letter of the Constitution is probably the best approach. This is borne out by the constant and sometimes hysterical derision of the leftists and gangster socialists to this position e.g. Tenthers. The left wouldn’t be engaged in a rather risky opposition to the written Constitution if they didn’t fear it would greatly undermine them.
Our judicial problems stem from the notion of a “living Constitution” that means whatever 5 Justices think it means on a given day.
Ending lifetime appointments by putting them up for elections doesn’t solve that problem, and actually may make the problem worse.
Brian,
I see your point. However, there are currently states such as Iowa that employ retention votes and some states even go as far as to have competitive races on the local level for the judiciary.
Obviously, there is a possibility that competitive races for the judiciary may over-politicize the process. A retention vote likely would not, and it would have the added benefit of increasing the people’s awareness of Constitutional issues.
Aside from that though, I do not think that the election of judges has to be the “be all, end all.” I would personally support, at the federal level, returning the standards for impeachment to their original parameters. Namely, “bad behavior” was not just criminal behavior, but also immoral or Constitutionally subversive behavior. David Barton covers the history on that in his book Original Intent.
You bring up an interesting point about the “Living Constitution” mentality. What are some ways, aside from elections, that we could break from that?
The Living Constitutionalists are a recent phenomenon but they enjoy majority status on the bench, mostly because power is intoxicating. Think of the power that exists when you can make the Constitution mean whatever you’d like it to mean.
The problem is no one would’ve ratified the Constitution if they were told “This document means whatever 5 judges think it means, and the same words today could mean something completely different tomorrow if they feel like it.”
One simple rule would change history for the better: If something was Constitutional yesterday, it should still be Constitutional tomorrow.
Change should come legislatively or by amending the Constitution. That’s it.
The notion that the death penalty was Constitutional for centuries and then should be unconstitutional tomorrow is silly.
But the Living Constitutionalists want to be able to say the Constitution says things it doesn’t say so they can do things they couldn’t otherwise do.
I have no problems with retention votes for state judiciaries, but I think the system at the federal level works.
The issue with judges redefining the Constitution is a direct result of the executive and legislative branches ceding their authority to construe the Constitution to the Supreme Court. The founders expected that the legislature wouldn’t pass unconstitutional laws or the executive would veto them. The idea that only the courts have the ability to construe the Constitution isn’t actually in the Constitution – the biggest and most accepted example of judicial “activism” ever.
The real problem is simply that the law is never as clear as we would want it to be.
Absolutely a terrible idea to have retention votes on Federal judges. Frankly, I have no idea what the term “activist judges” really means. It seems to crop up whenever the judiciary corrects legislative or executive excesses or abdication of responsibility. It is an integral function of the checks and balances among the three branches of government. For example, was Brown vs. Board in 1954 “judicial activism” or simply the Supreme Court making a correction where the Congress had failed to act in almost 100 years after the ratification of the 14th Amendment? That is hardly “activism.”
Brian K.,
I agree that the standard you articulated should be applied. I would take it a step further and tie enforcement of that standard to a retention and/or impeachment mechanism.
Brian S.,
I agree with you that the executive and legislative branches were complacent in allowing the Supreme Court to become the sole arbitrators of Constitutionality. Although some would suggest that the Supreme Court forcibly took that authority in Marbury v. Madison.
I also agree with you on states having the right to retention votes. However, I do not believe that the current system at the federal level works. It would work if we operated with the same standards that we had in the early 19th century. The impeachment process was much easier to use in those days.
To anybody,
A Judicial Reform package could include a re-enhancement of the impeachment process, a Congressional re-confirmation process that would take place after so many years, or direct retention votes by the people.
These are just some ideas that I am throwing out there. But the people are demanding accountable government. Judicial Reform is a part of that process.
Horrible idea. In states with elected judges, the biggest contributors to the judges are — hey, howabout that! — trial lawyers. I’m not crazy about the way Virginia chooses judges, I’d rather have the governor pick them and the legislature confirm them, but electing judges is the worst possible way to pick them.
The framers of the Constitution, the people the Tea Party is supposed to venerate, did their best to insulate the federal judiciary from politics for a reason.
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