- The Washington Times - Friday, December 8, 2000

If there is one lesson that screams out at us from the “election from hell,” it is the importance of judicial restraint — the connection between judicial restraint and ordered liberty. That’s a fitting lesson, given the two candidates’ radically different views regarding the role of our courts.

During the campaign, George Bush pledged that he would appoint strict constructionists to the federal courts. Al Gore, just as plainly, promised to appoint judges who shared his view that the Constitution was an evolving document.

For most people this is a hot-button issue primarily because of the abortion question. Conservatives have two problems with Roe v. Wade, the main Supreme Court case establishing a woman’s qualified constitutional right to terminate her pregnancy. Of course, they believe abortion is morally wrong (putting aside here the various exceptions upon which there is no consensus of opinion). But also troubling to them is the way this “right” was established.

In restricting the states’ powers to regulate abortion, the Supreme Court literally created a woman’s constitutional right to privacy, when the Constitution was silent on the matter. Conservatives weren’t surprised because activist Courts — especially the Warren Court — had been legislating for years.

One of my political science professors argued that activist judges were not necessarily politically liberal and that strict constructionists were not necessarily politically conservative. Theoretically, he was correct, because it is possible to have an activist, conservative judge or a strict constructionist, liberal judge. But as a practical matter, the overwhelming majority of activist judges are political liberals.

Most conservatives don’t believe in using the courts to make policy. They believe that under our system policymaking is the prerogative of the legislative and executive branches of government and that the judiciary should be relegated to interpreting the laws.

This is not just a hypertechnical distinction. The framers deliberately left the policymaking to the political branches because they are more accountable to the people.

Critics of justices such as Scalia and Thomas argue that if they had their way they would overturn, for example, Roe v. Wade. Such critics say that this would be a rank act of judicial activism. But it would not. A reversal of the case would merely restore the power to regulate abortion to the states.

An arguable example of politically conservative judicial activism would be for the Court not only to reverse Roe v. Wade, but to hold that the Constitution outlaws abortion — and any state law permitting it is void. The brilliant Alan Keyes might argue that this still wouldn’t be judicial activism, because the Constitution’s preamble makes clear that one of the purposes of the document is “to secure the blessings of liberty to ourselves and our posterity,” and we can’t achieve that purpose if we permit the unborn to be killed in the womb.

Regardless, the point is that conservatives don’t advocate rewriting the Constitution from the bench. There are constitutionally prescribed methods for amending it, and judicial fiat isn’t one of them.

There is a major philosophical difference between liberals and conservatives regarding the role of the judiciary, and it involves a great deal more than resolution of the abortion question, as terribly important as that is to both sides.

This election contest saga has brought into focus the horrors that can occur through judicial tyranny. When courts do not agree to limit themselves to their constitutionally assigned role they can totally undercut the social compact between the citizens and their government.

Were it not for the reluctant “intervention” of the United States Supreme Court, the activist Florida Supreme Court may have rewritten the Florida legislature’s constitutionally authorized method for appointing presidential electors. In so doing they would have been changing the law after the fact and replacing it with new law that suited their desired result. They still may try.

As pro-life as I am, I hope that the post-election chaos will open more people’s eyes to the other problems inherent in judicial activism. When judges rewrite laws and otherwise ignore the original intent of the Constitution they abdicate their role as the primary guardians of our freedoms, and become agents of their destruction. That’s because the Constitution must remain as the unshakable anchor and guarantor of our liberties.

Unless the judiciary protects the integrity of the Constitution, the foundation of our liberties will be undermined and our liberties imperiled.

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