The Daily Caller

The Daily Caller

Judges need to be more assertive in defending our freedoms

What is it that judges should do?

“Judge” sounds like an obvious answer, but prominent jurists on both the left and right would disagree. When confronted with constitutional issues, they believe this nation’s judiciary should excuse itself from that responsibility and defer endlessly to the faulty judgments of the legislative and executive branches.

Harvard law professor Laurence Tribe recently wrote that the correct outcome in the legal battle surrounding “Obamacare” is an easy one to decide: No one should question the ability of Congress to command the personal decisions of Americans in the context of health care. To do so relies on the “confused assertion that what is at stake here is a matter of personal liberty.” What is at stake, according to Tribe, is the unfettered power of the government to control the economic lives of its citizens, a power that Supreme Court precedent emphatically affirms.

One might hope that those on the political right would battle this notion of unrestrained government authority, but one would be disappointed. Writing on the same subject, Professor Robert Nagel recently argued generally against using the courts to defend the Constitution. He follows esteemed Judge Richard Posner, who in 2008 urged his colleagues on the bench to stick to “judicial modesty,” a policy that cautions the judiciary not to “interfere” with the wisdom of the other branches.

It is all too easy for commentators on both the left and the right to assert that judicial intervention is somehow illegitimate — after all, commentators can assume that judges will, of course, come to the defense of issues they care about. The courts are expected to come to the defense of flag burning, for commentators on the left, or the rights of gun owners, for those on the right. But since each side has essentially gutted the process of judicial review, it is unclear how this confidence could arise from a coherent theory of constitutional law.

Today, Americans are increasingly convinced that their government has grown far beyond their control. This change occurred in part because judges have submitted to the legislative and executive branches under the guise of modesty. In doing so, they have undermined the separation of powers and have given those in government carte blanche to do as they please without regard to the rights and principles enshrined in the Constitution.

What this nation needs is not judicial “deference” or “modesty,” but judicial engagement. Judges must embrace their duty to enforce the real limits that the Constitution places on the government’s ability to interfere in the lives of American citizens. The Constitution is designed to prevent the kind of runaway government that we have today, but when judges refuse to question the power of the other branches, they abdicate the responsibilities of their office and transform the Constitution from a charter of liberty to a source of virtually limitless government power.

Jason Orr works at the Institute for Justice. To learn about IJ’s Center for Judicial Engagement, visit www.ij.org/CJE.

  • Drahcir

    I belive what a majority of Americans would like to see is a Judicial System that does Not follow Political Agendas.In my opion the judges should be arranged in a formatt as an equal number of left and right with two or three independent.The independents would be the deciding vote, likewise the judges should not gather together, to sway a vote. I am not sure how long a diliberation should be, but i would say that two months should be enough time to get the facts of the case.In desputed cases on government, No left nor right can send a lawyer to present this case. It must be repersented by an independent lawyer. No high dollar firm with a politcal agenda to sway the case!

    As I have stated before; Let the Judical Branch rule them all!

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  • virginiacentrist

    This is a better version of George Will’s December column arguing for “Judicial Engagement”:

    http://www.washingtonpost.com/wp-dyn/content/article/2010/12/03/AR2010120304467.html?wpisrc=nl_pmopinions

    Like I said, your take is much better than Will’s. Will’s self-serving semantic argument goes like this:

    Judicial Activism = judicial decisions that George Will doesn’t like.
    Judicial Engagement = judicial decisions that George Will likes.

    You (smartly) avoid Will’s semantic silliness and simply argue (a) that the judicial branch should not see itself as subservient to the legislative branch(b) that judges should be “active” in protecting the constitution. But the judges (and 99% of legal scholars) who have affirmed healthcare reform’s constitutionality would be in full agreement. Pro-Obamacare judges and legal scholars see themselves as active defenders of the constitution’s Commerce Clause (among other sections) from assault by partisan judges (like Vinson) who strike down laws because they dislike the politics of a legislative outcome. For example: Florida’s Judge Vinson hilariously argues that the individual mandate’s penalty is not permitted by Congress’ power to tax because Democrats avoided using the word “tax” during the political debate in order to avoid criticism for raising taxes [not true, but whatever]. Vinson implies that the constitution requires that all revenue raising provisions be subject to Fox News anti-tax demagoguery.

    I like that you’ve turned the term “judicial activism” on it’s head here and mocked those who would use it for their own ideological purposes, because it’s an ill-defined term. It’s an interesting argument (though I wonder what you think of traditional judicial activism in protection of “rights” that are based on a loose interpretation of the constitution like gay rights and a right to privacy). But at the end of the day, the real argument isn’t over semantics or the real definition of judicial activism. It’s whether the Commerce Clause allows Congress to regulate an economic activity that extends across state borders and pervades every economic sector of society. You and I might have our own opinion on the matter, but the courts are the ultimate arbiters of the constitutionality of laws (that was the founders’ STRICT intention, right?). For nearly 80 years, judges have argued for the current interpretation of the Commerce Clause. Is that a circular argument? Sure. But so is, “The Commerce Clause should be interpreted less broadly because I say so.”

    Interpretations of the constitution change over the years. Does today’s broad interpretation of the Commerce Clause conform with our founders’ original intent? I don’t know. Our wise and infinitely enlightened founders are dead. And so are their slaves.

    PS: Am I mistaken, or wasn’t the early judicial branch a meek and underwhelming body that bowed repeatedly to the legislative branch? Jefferson (who feared a strong judicial branch) said: “But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.” Adams favored a stronger judicial branch. My point isn’t that either is right, but that the founders had conflicting and complicated opinions on the strength of the judiciary. To attempt to divine their intentions is an important part of any judge’s calculus, but anyone who claims to have an absolute interpretation of the founders’ intentions (for example: an interpretation that goes against 80 years of legal precedent) ought to take a step back and examine whether they’re simply trying to use the powerful specter of the constitution to make a stronger political argument in favor of a policy outcome that conforms with their ideological predisposition. Americans view the constitution as a holy document. Throughout American history, cynical politicians have whipped people into a furor by decrying the violation of constitutional principles based on their own reading of the document. So color me skeptical.

  • Tess_Comments

    Jason Orr’s last paragraph tells it like it is.
    What this nation needs is not judicial “deference” or “modesty,” but judicial engagement. Judges must embrace their duty to enforce the real limits that the Constitution places on the government’s ability to interfere in the lives of American citizens. The Constitution is designed to prevent the kind of runaway government that we have today, but when judges refuse to question the power of the other branches, they abdicate the responsibilities of their office and transform the Constitution from a charter of liberty to a source of virtually limitless government power.