Judicial Restraint

This paper is also from A.P. government. It was based off of two readings from Robert Bork and Robert? Brennan. I, obviously, wrote on why the Supreme Court should remain constructionist. I'm still on the fence, however, I tend to lean towards judicial restraint. I hope that this will enlighten some. Any thoughts?

Since the ratification in 1789, the Constitution has survived numerous world wars and other atrocities faced by American government. Nonetheless, as Thomas Hobbes, an influential English philosopher, would argue: selfish human nature has taken over and redirected the document put in place to end warring between the citizens. The debate over what powers and privileges each branch of government possesses has gone on since before the ratification. One particular branch has stepped far beyond its limits, though. The judicial branch, in the eyes of most conservatives, has illegally expanded its power and must be restrained; the Constitution was written as such to maintain democracy. However, when the Supreme Court interprets the document based on its own opinion, democracy cannot exist.

Judicial bias is largely the reason why judicial activism cannot work with the law outlined in the document. When justices blindly create laws for cases absent a constitutional conflict, havoc ensues. According to Robert Bork, an advocate of originalism, “The attempt to define individual liberties by abstract moral philosophy, though it is said to broaden our liberties, is actually more likely to make them more vulnerable.” When judges apply their bias to disputes that are not in conflict, people are challenging their own liberties by putting them in the hands of justices not elected by the public. Society and its morals will change but, constitutional change is summarized to be made through amendments. For example, the eighteenth and twenty-third amendments are accurate in denoting changing opinions and the correct procedure of instituting constitutional change. Conversely, as an activist would hold, the court must interpret the Constitution to modern thought. Although, when frivolous lawsuits become the norm, the public will appropriately begin to lose respect for policy. In fact, the law gets turned off course because of judicial bias and there is no longer a direct precedent to apply. Robert Bork includes Robert Bolt’s play, A Man for All Seasons, in his essay, “Tempting of America” because it clarifies why law should never deviate from the original intent of the framers; “And when the last law was down, and the Devil turned round on you – where would you hid, the laws all being flat?” According to Bolt, law is reason, free from passion.

The Constitution was written in a short, direct manner in order to discourage judicial interpretation on specific clauses. Supreme Court judges have the power only to apply law, not create it. Furthermore, the document was written with the idea of maintaining status quo in mind. That change would be difficult to make through the legislative process; the document deliberately structures a slow, unwavering change. Besides, constitutional change is to be made with an overwhelming majority; a two-thirds vote for proposal and then a three-fourths vote for ratification. In addition, both proposal and ratification processes are made through democratically-elected representatives. When justices accept judgment and authorize law, they do so by often taking apart the constitution to use as evidence for their arguments. However, this leads to the fact that there is no longer a single political trajectory. Due to the fact that judges no longer look to the original intent of the founders, there is no set precedent for judicial decision-making. For example, the fourteenth amendment was the reasoning for both Plessy V. Ferguson in 1896 and Brown V. Board of Education in 1954. The two cases were complete mirrors of each other with the same constitutional basis. When deviation occurs from the original intent of the document, the Supreme Court no longer has any standing foundation on what to base their decisions on. The framers wrote the law down in order to institutionalize a system of government that would remain stationary but evolve with time.

The Madisonian Model was a conservative guideline on which the Constitution was written. Madison created through a system of separation of powers, checks and balances and limitation of direct democratic control, a document that would prevent a tyrannizing majority rule. For instance, the judicial branch is given power through Congress and, in turn, the Supreme Court can declare an act of Congress unconstitutional. This system that Madison created was crucial to protecting the rights of minorities. However, the judicial branch has abused the power given to them on the footing that the Court protects minority rights when in fact, it already was. Judges are known to “legislate from the bench” or create laws without the approval of the legislative branch. This act is a violation of the separation of powers in the Constitution. The Court should defer all cases involving proposition of law to Congress. In reality, the reason for this is the fact that Congress is representative of the people calling for policy change whereas judges merely represent themselves. They are, under the model, completely insulated from the will of the majority. This gives the judicial branch say if constitutional conflict arises when legislation is made through Congress without fear of being impeached. Additionally, the checks and balances section makes the most famous activist decision, Marbury V. Madison illegal. The Court literally gave itself the power to override any decision it saw as unconstitutional. As stated earlier, the bias of judges could make any law “unconstitutional.” For example, Roe V. Wade in 1973 was a decision that dove into women’s choice to abort or birth. The justices based their argument off the fact that Jane Roe’s privacy had been invaded by the state law. Technically, there had been no just conflict with the Constitution. As the document states in Article III, Section 2, only Congress has the ability to determine the appellate jurisdiction of the Supreme Court, not the Court itself.

Ultimately, the unelected judicial branch has no legitimate grounds to overrule policy choices of elected representatives absent a constitutional conflict. The Constitution is the basis of the American government and the branch has usurped the significance of the document. When the unelected Supreme Court creates legislation based on a minority’s argument, democracy has ultimately failed. The government is founded on the idea that the people are the policymakers. To fix this problem, according to Ramesh Ponnuru, “A simple majority of Congress and a Presidential signature can regulate or establish exceptions to the jurisdiction of the federal courts.” The Constitution is to be interpreted literally and if so, than society will still manifest and change but, supposedly when the majority sees it so. Even so, American government is set up in a manner that the minority still enjoys its rights unlike Rousseau’s philosophy.