I apologize ahead of time, because this is going to be a long post.
The tired argument against “activist courts” is being trotted out again, this time by a senior editor at the
National Review in its Jan. 26 edition. In this piece, decisions pertaining both to marriage equality and assisted suicide are dissected as examples of an activist court overstepping its constitutional authority.
Ramesh Ponnuru’s argument is that these were cases of “profound moral consequence upon which reasonable citizens of goodwill disagree,” and that the courts inappropriately intervened on the presumption that the state constitutions involved would resolve the issue under dispute.
I really find this incredible coming from a conservative writer on many levels. After all, conservatives are often wont to have all of us look upon history for direction. As
Russell Kirk once wrote (and I’m paraphrasing), the conservative perspective is one in which those in the present stand upon the shoulders of those from the past in order to gaze into the future. In other words, true conservatism is a method to anticipate the future by using the lessons learned from the past. In terms of that philosophy, I don’t disagree with the premise. But conservatism hasn’t really turned out to be that philosophy; rather, it has become a philosophy blinded by ineffective paradigms.
A case in point: the notion of an “activist judiciary.” What is an “activist judiciary”? Is it a judiciary that inappropriately dictates social policy and supplants the legislature? Or is it a judiciary that, with prescient perspicuity, shows how a current popular sentiment is self-serving and contrary to the true intentions of our Founding Fathers?
Ponnuru attempts to appear fair by noting that both sides of the “judicial activism” argument contain truth, but this is merely a ruse to portray his thesis as being objective and well-thought. It is neither, as he falls into the same tired argument, which he accuses the other side of, and that is he ignores key elements of how our republic is structured as well as how quickly the argument fails when faced with the historical evidence found in precedent.
For example, in the California marriage case, Ponnuru suggests that for the California court to “strengthen his (sic) case, one of the following two things would have to be true: Californians who ratified their state constitution understood its guarantees of equal treatment of persons to entail same-sex marriage, or they understood themselves to be handing over to the courts the authority to order the state to recognize same-sex marriage in the name of equality. Both propositions are, literally, incredible.”
What is incredible is how Ponnuru can come to such a conclusion, because it completely ignores our county’s history. If his premise is correct, it would mean that our Founding Fathers, when creating the Declaration of Independence as well as the Constitution, were aware that their documents would apply to blacks and women, or that they were giving permission to the courts in the future to come to that conclusion. As we all learn in school, some of the Founding Fathers were slave owners. And undoubtedly all of them wouldn’t think for a minute that a woman could become a local government leader, let alone president. Yet we see that there was great resistance in our republic’s early years to the notion that the statement, “all men are created equal,” really applied to all men. It is also clear that that resistance carried on well into the following centuries. And certainly behind this resistance was the collective will of a majority (white men) that had no intention of allowing that statement to apply to either women or blacks.
Perhaps knowing how weak his assertion is, Ponnuru attempts to fudge the argument even more by suggesting, using the Montana case regarding assisted suicide, that the meaning of words like “equality” or “dignity”, which are at the center of these issues, are open to interpretation because these definitions can be subject to personal nuance.
That may be true with the word “dignity.” When asked to precisely identify what it means to be treated with dignity, a person could stammer his or her way through such a definition; “dignity” can be rightfully labeled a “vague” term even though intuitively we all know what it means. The word is very much like the word “pornography”: we may have difficultly explaining in words precisely what it means in all circumstances, but we can all agree with the notion that we know what pornography is when we see it.
The word “equality”, however, is quite different. It can be precisely defined in words; we don’t need a picture to look at to say “equality is that.” Ask anyone what equality under the law means and you’ll get the same answer time and again: it means the law treats everyone the same.
It is also remarkable that someone of Ponnuru’s intelligence and education would make the following statement: “If you were designing a government from scratch, you would have no compelling reason for entrusting these decisions to judges in your constitution.” It is remarkable that Ponnuru wrote this because the Founding Fathers did precisely that; create a government from scratch with three branches of authority, each specifically designed to keep the other two in check. That this was the intended structure of our government was so self-evident that a traveling Frenchman in 19th century America was able to see that and write extensively about it in his famous tome, “
Democracy in America.”
It was clear to
Alexis de Tocqueville what the judiciary’s role was in America, and that was to interpret the law to ensure that neither the executive nor the legislative branches abused the authority granted them. It was necessary, Tocqueville wrote, because of an inherent flaw in how the legislative branch was selected: popular vote for limited terms in office, which opened the door for a “tyranny of the majority.” Tocqueville noted that these terms in office were short enough that a representative might be too focused on what his constituents wanted, rather than what was truly good for the country. Hence, there was always the danger that legislators would enact law that was purely motivated by a desire to appease campaign supporters.
Ponnuru closes his article with the reactionary statement: “Our laws would deserve respect even if they were wrong in taking most policy discussions out of the hands of the courts, simply because they are our laws.” Such a statement is fraught with incredible danger, because it promotes the notion of emasculating one of the three branches of government, removing the very authority it was granted by the authors of the Constitution. It is clear that our courts must play such an “activist” role, if that is how it shall be labeled. Ponnuru’s desire for a reluctance by the court to playing an activist role was granted in
Plessy v. Ferguson, yet would anyone today agree that the court’s majority decision in that case was the correct one? One could easily imagine Ponnuru, were he living at the time of Plessy, writing a scathing attack against
Justice John Marshall Harlan for his “activist” position that the majority decision was wrong.
It is clear that if we did not have activist courts, we would still be faced with lawfully enforced segregation, lawfully enforced restrictions on the races intermarrying, lawfully enforced prohibitions against women voting or having equal opportunity, and lawfully enforced disrespect for minority religious beliefs.
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