Judicial Activism
JUDICIAL ACTIVISM
April Banks
L25606762
Government 329
Liberty University
12 November 2015
Judicial Activism
Abstract
The phrases “judicial activism” and “original intent” are heard often these days,
particularly in conservative circles. The question becomes though, what do those phrases mean?
Are they simply phrases used without an understanding of context? Do they simply refer to
judges that are ruling in ways that those that use the phrases don’t like? Or is there something
deeper meant by them? In order to understand what is meant by judicial activism, we need to
understand what the Founders wanted and what the original intent was of the Supreme Court. In
understanding the original intent, we can discover if what we see today is truly judicial activism
or if it is judges acting with the original intent of the Founders.
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The Judiciary Act of 1789 by Congress established the Supreme Court, and the rules it is
governed by, for the United States. The Supreme Court is only given jurisdiction over federal
questions that are grown from litigation in the state courts that, while solidifying national
powers, still allowed state courts to make determinations of federal questions[ CITATION
Bra12 \l 1033 ]. The main thing that the Judiciary Act did, however, was to confine the Supreme
Court to only answering questions of law, not to create law[ CITATION DeH97 \l 1033 ]. In
doing so, this assisted in alleviating the fears that the Supreme Court (Court) would have the
power of overturning the rulings of local juries [ CITATION Bra12 \l 1033 ]. The narrow scope
of the Court’s original jurisdiction listed in Article III of the Constitution has been protected by
the court itself. While Congress has had the discretion to modify the Court’s juridiction, the
Court in Marbury v. Madison in 1803 stated that “Congress cannot add to the Supreme Court’s
original jurisdiction” [ CITATION Pau12 \l 1033 ].
Arguments for original intent, or originalism, are backed by the Constitution in several
ways. One is that original intent lines up with the heart of the constitution by supporting a
government that was accountable to the people and allowed the people to be in charge of their
own lives[ CITATION Dav09 \l 1033 ]. The next argument is that the Supreme Court is limited
from “asserting its will over the careful mix of institutional arrangements that are charged with
marking policy, each accountable in various ways to the people”[ CITATION Dav09 \l 1033 ].
Perhaps one of the greatest arguments was Federalist No. 78. Alexander Hamilton wrote
regarding the importance of the intent of the Court as well as the importance of the judges to be
above reproach:
“This independence of the judges is equally requisite to guard the Constitution
and the rights of individuals from the effects of those ill humors, which the arts
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of designing men, or the influence of particular conjunctures, sometimes
disseminate among the people themselves, and which, though they speedily give
place to better information, and more deliberate reflection, have a tendency, in
the meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community” [ CITATION
Ham88 \l 1033 ]
Hamilton also argued in The Federalist No. 81 that judges did not write laws or general
rules for the American people nor did they initiation action but the Court had to wait for the cases
to come before them in order to determine their validity [ CITATION Chr06 \l 1033 ] and they in
turn only gave judicial review when the decision would enforce the Constitution rather than the
will of the judiciary. This is what original intent is about, guarding and enforcing the Constitution
and in doing so, the people.
Arguments for judicial activism are just as strong as those for original intent. According
to Professor Roosevelt, the term “activist” came into use about 60 years ago to reflect the feeling
that a judge was making decisions based on what the judge thought was good policy
[ CITATION Jac09 \l 1033 ]. As an example, Craig Green writes that his metaphor for the
judicial role “is a rope tied to a moveable anchor. Although the anchor holds judges in place, it
can shift over time based on ambient conditions and the strength of dislocating tugs”
[ CITATION Cra09 \l 1033 ]. His view, as well as that of many that approve this type of
judiciary, is that they allow for institutional change and allow as many have said over the course
of the past few years, regarding issues such as same-sex marriage that laws must change with the
times. Likewise, Thomas Sowell gives the argument that reasons for going beyond the original
intent include substantial changes socially, moral questions that are involved and the right of the
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majority to govern through their representatives [ CITATION Tho15 \l 1033 ]. One of the
prevailing arguments for judicial activism is also that the Founders could never have known the
types of issues that we deal with today. According to Sowell, Justice William J. Brennan is
quoted as saying that those who hold to original intent “turn a blind eye to social progress”
[ CITATION Tho15 \l 1033 ]. It is these arguments that provide the foundation for judicial
activism.
Both sides of the argument have equally valid points. In terms of judicial activism, it can
be said that when African-Americans were given equal rights that the justices acted in a manner
that could be attributed to judicial activism. Likewise, it can be said that the same cases that gave
equal rights are tied to original intent as the Declaration of Independence states that “all men are
created equal” [ CITATION The76 \l 1033 ] and does not define race or creed in this statement.
Both sides can be seen as being equally valid however, the fear of many originalists is that the
judiciary is becoming more powerful and writing law. It is in that realm that the justices truly
become activists.
James Madison wrote in the Federalist Papers that to have judicial power that was
combined with the authority of the executive and legislative branches was tyranny [ CITATION
DeH97 \l 1033 ]. Likewise, the Founders used the word “corruption” not just for criminal
behavior but in referring to “political acts that corrupt our constitutional system of checks and
balances” [CITATION New11 \p 141 \l 1033 ]. Justices need to be engaged in protecting the
citizenry as the laws that come before them impact the daily lives of the citizens. We live in a
time when the government is overreaching and running away from its original intent. This is a
result of the government, including the Supreme Court, exceeding the constitutional rights
[ CITATION Jef09 \l 1033 ] that were laid out by the Founders. We need to get back to the heart
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of what the Founders wanted for this nation, and in doing so; the nation will regain what made
her great to begin with.
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