The words judicial activism have been bandied about by the so-called modern day conservative as a perjorative in describing the Supreme Court. Conservatives fail to acknowledge that from the court’s very inception, the court has been active in their interpretation of the Constitution. Judicial activism is in the eye of the beholder, for conservatives, the Warren Court was the evil active court deciding decisions allegedly based upon some liberal agenda. The same complaints are heard today about the Robert’s court. Liberals claim that today’s Supreme Court is an activist court regarding the conservative agenda. What we don’t need is for judicial activism to run amok, whereby our rights are diminished or taken away due to the court feeling too much political pressure.

It would be instructive to trace the beginnings of the court’s history in order to understand the court’s place and role in our system of checks and balances.

The present danger to the court is the pummeling it is taking in the world of public opinion. For if the people lose faith and trust in the court, the one branch of government that is supposed to be above politics, the people will lose respect for the law.

Chisholm v. Georgia was the very first case heard before the Supreme Court. The facts of the case involved the question of whether or not a state could be sued by a citizen of another state. Nothing was said in the Constitutional Convention that answered that question. Therefore the decision of the court was activist on its face since the text of the Constitution was silent on the matter.

The decision held that a state could be sued by a citizen of another state. The decision was so controversial and unpopular that the 11th Amendment to the Constitution was passed that answered the issue.

The issue of judicial activism seems to arise as a political issue whenever one faction is not happy with the result of a decision. The Constitution provides the citizens of our country with an avenue of change if a decision so outrages the people. Our choice is to go the route of offering an amendment to the Constitution.

The Constitution in its infinite wisdom has made the process for change difficult as it should be. What is dangerous is the suggested changes that are currently being talked about that would weaken the independence of the judiciary and render it subject to the political whims of the moment.

Congress should not have the power to override a decision by merely having a vote on whether the decision was good or bad. Tenure should also remain, for putting any time limit for a supreme court justice’s term would limit their independence from political considerations. The Supreme Court’s independence is already in sufficient jeopardy due to the current litmus tests that nominees go through before the Senate Judiciary Committee.

There is more than adaquate information available in determining the responsibilities of the Supreme Court, from the words of Article III of the Constitution, to the words of the Federalist Papers on the reasons for judicial independence to the defining case of Marbury v. Madison regarding the issue of judicial review.

Marbury v. Madison is important regarding the concept of judicial review but many believe the case is a great example of judicial activism that went over the top, due to the crafty political expediency and excessive partisanship exhibited by Chief Justice Marshall in his decision.

When life brings forth new issues that the founding documents were silent on, and the court by necessity hears a case on the constitutionality of a matter, their decision by its very nature will be new law. The public will view those decisions that will come up in the future as activist rulings.

It should be our hope that activism on both sides of the political spectrum is reasoned and reasonable. There is a view that change that occurs through decisions made by the court need to be incremental in nature so as to not unsettle through judicial activism the peace and tranquility of our civil society. Change that occurs too suddenly can be unsettling.

Societal change through the gaining of rights can be and is a cause for honest disagreements that are fraught with emotion. Women gaining the right to vote being an example. In recent times, Roe v. Wade was and is controversial.

History brings with it changed circumstances that auger in new situations which the founders did not anticipate. The internet and privacy being a good example of something most people old enough to remember when the internet did not exist, still have a hard time wrapping our head around.

The Constitution is our legal Bible which we base our political actions upon and under which our rights as citizens are protected by. Let us not for one moment doubt that it is a living document, whereby the words of our wise founders established a union, where new situations require new laws.

If one reads the words of Madison in his writings until his death, you are left with the certainty that he realized that original intent did not exist and did not exist for a reason. He wanted the people to ratify the Constitution not for what was said in the halls of the Convention but rather for the reason that he wanted the people to know that the Constitution held rights that the people held and that future times would require change.Let us hope that the judiciary can remain above the political fray as much as possible and determine the laws based upon the facts and the rights that the people have under our Constitution.


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