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June 24, 2005
Judicial Activism: Not A New Worry

Earlier today, in the aftermath of the Kelo decision, a CQ reader reminded me that judicial activism is not a new phenomenon. In fact, some of the greatest jurists in American history have opined on its dangers for more than a century. They accurately predicted the politicization of the judiciary and the overarching reach the bench could garner through the philosophy of the "living Constitution". Here are the echoes of protest and warning that have gone unheeded until, perhaps, we are too late to stop the worst of its damage.

Chief Justice Charles Evans Hughes, in 1916: We are under a Constitution, but the Constitution is what judges say it is . . . .

Chief Justice Harlan F. Stone, in 1936: . . . the only check upon our own exercise of power is our own sense of self-restraint.

Justice Oliver Wendell Holmes, in 1930: As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.

Justice Robert H. Jackson, in 1953: Rightly or wrongly, the belief is widely held by the practicing profession that this court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in which much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.

Justice Felix Frankfurter, in 1949: Because the powers exercised by this Court are inherently oligarchic, Jefferson all of his life thought of the Court as an irresponsible body and independent of the nation itself. The Court is not saved from being oligarchic because it professes to act in the service of humane ends. As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace.

Justice John M. Harlan, in 1970: . . . the federal judiciary, which by express constitutional provision is appointed for life, and therefore cannot be held responsible by the electorate, has no inherent general authority to establish the norms for the rest of society. It is limited to elaboration and application of the precepts ordained in the Constitution by the political representatives of the people. When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power is committed, and it has violated the constitutional structure which it is its highest duty to protect.

As my reader writes, the high court has elevated itself to the point it is highly reminiscent of, "L'etat, c'est moi" ("I am the State!), the reply given by Louis XIV to his parliament when they dared to challenge his authority. The high court's message is a no less simple, and, certainly, no less regal, self-aggrandizing, and self-empowering.

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Posted by Ed Morrissey at June 24, 2005 12:52 PM

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