Monday, June 27, 2005

Judicial Activism

I would love to do a post about which right, guaranteed, like that means anything, by the constitution and bill of rights, is next to fall, but as a judge here on the CONDEATHPOOL I cannot.

I do believe that there are many liberties that are under assault today by what is known as judicial activism.

Judicial Activism is a phrase that described the making of law by judges instead of them interpreting the existing laws. Some of the more recent and infamous examples of judicial activism are the rulings that have given us the “right” to abortion the “right” to privacy and most recently the “right” of local governments to take our property. As a new homeowner, (well Citibank “Owns” it for the next 30 years) I find this most distressing.

However there have been time where this activism has been good for America. A former Professor of mine had pointed out that it was President Adams who had appointed John Marshal to the supreme court in 1801. Marshal was a committed Federalist who upheld nationalist principles until his death.

The marshal court’s first major decision involved the judicial review. In 1798, during the dispute over the Alien and Sedition Acts, republican dominated legislatures in Kentucky and Virginia had asserted their authority to determine the continuality of national laws. However the Constitution stated “the judicial Power shall extend to all cases...arising under the Constitution and the laws of the United Stated”, implying that the Supreme Court held the final power of judicial review. But before 1803 when Marshal composed the decision in Marbury v. Madison, the Supreme Court had never overturned s national law or had it ever claimed the power of judicial review. During the first half of the 1800’s the Court had used this power sparingly and then only to overturn state laws that conflicted clearly conflicted with federal law.

The court used its power with restraint but it always had kept the idea that the constitution came first. Lately the recent use of Judicial Review has been to find new meanings in the constitution, meanings that one must use a leap of faith to get be able to reach. The Judges are now looking to the constitution for meaning to impose personal views and agendas. Where will this activism stop? At what loss of freedom will we demand that the judges stop imposing their personal views on the majority of Americans?

I believe that most citizens love the freedoms that we have been given, but we are so used to those freedoms, that we take them for granted. Loosing one or two of the freedoms may seem trivial but it is adding up and one day we will wake up to find ourselves living under the yoke of serfdom that our forefathers fought so hard to give us.

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