Judicial Activism: Perhaps the Family's Biggest Threat
by Ryan McCann

Issues such as same-sex marriage, the Ten Commandments, abortion, the Pledge of Allegiance, etc. are symptoms of a dangerous problem: Judicial Activism. Just what is Judicial Activism and how could it possibly be the most dangerous threat to your family?

Judicial Activism occurs when judges place their duty to interpret the Constitution and the laws of the United States as secondary to a social outcome they wish to produce. These social outcomes, which may sound compassionate and just at first glance, are produced unconstitutionally. Judges are bound by oath to interpret the Constitution and the laws enacted by the legislature. They are constitutionally barred from rewriting the laws the legislature has enacted even if the social outcomes they wish to produce are just.

Why is Judicial Activism so dangerous? Because the judiciary steps outside of its constitutional boundaries and can then become tyrannical. At first, such activism may seem appealing to the public. It’s the classic case of the ends justifying the means. The nature of certain issues lures the public into allowing the ends (a seemingly beneficial social outcome) to justify the means (a judicial power grab).

This seemingly compassionate use of Judicial Activism is a wolf in sheep’s clothing. The United States Supreme Court used it only sparingly, many decades ago. Nevertheless, Pandora’s Box was opened and Judicial Activism is commonplace today. The courts regularly thumb their nose at the will of the legislature. Abortion, the Ten Commandments, Gay Marriage, Prayer in Schools, the list of issues unjustly decided goes on and on but the underlying root cause for these decisions remain – judicial activism is out of its cage and wreaking havoc.

You may ask, "If Judicial Activism does occur why aren't these activist judges impeached? After all, they have sworn to uphold the Constitution as their primary duty, haven't they?"

Activist judges are not impeached because they don't openly denounce the Constitution. Instead they "interpret" the Constitution as a "living document" that changes with the times. Although the actual words never change, the meaning does (they would argue). So, instead of openly denouncing the Constitution they merely “interpret” it to mean whatever they want it to mean.

A classic example of Judicial Activism occurs in Roe v. Wade. The right to an abortion is obviously nowhere within the Constitution, nor is the authority of the federal courts to rule on domestic issues such as abortion. The authors of the Constitution clearly spell out what sorts of cases the federal judiciary can hear in Article III of the Constitution. All other issues were to be handled by the States. Although the 14th Amendment granted greater jurisdiction to the federal government, the authors of Roe twisted the due process clause (“nor shall any State deprive any person of life, liberty or property without due process of law”) to declare that the right to an abortion is a fundamental liberty that the States must not deny.

It doesn't take a Constitutional scholar to realize that the right to abortion was not what the Lincoln Republicans had in mind when they penned the 14th amendment. This is judicial activism plain and simple. A myriad of other cases could be pointed to, but Roe highlights the lengths to which the federal courts will go to in order to impose their perception of social justice unconstitutionally on the States and the American people. This sort of disregard for the Constitution is the loose string that could gradually unravel the greatest form of government God has given man.

How could this affect you? You may not care about the issues that the courts have previously decided upon through its use of Judicial Activism, but this brand of contempt for the Constitution could land on your doorstep someday:

If the due process clause can magically produce the right to abortion, why can’t it produce a fundamental right to own property? Perhaps by "liberty" the Lincoln Republicans meant that women can abort their children and all citizens of the U.S. have a fundamental right to own at least one acre of property. After all, the States through their laws against stealing are depriving you of your liberty, aren’t they? Shouldn’t you be able to take one measly acre of land from someone who has hundreds of acres? Shouldn’t that be your right? In order to enjoy your fundamental right to privacy, you need a home don’t you? Isn’t home ownership for the poor a compassionate social outcome that should be achieved through Judicial Activism? After all, it will never come about through the other branches of government.

My point is not that the Supreme Court will immediately allow non-property owners to steal from property owners. It is that Judicial Activism taken to its logical conclusion results in judicial tyranny. The analogy above may seem far fetched, but those types of arguments have been used by members of the Supreme Court for the last fifty plus years to achieve their societal goals.

We cannot let the judicial branch of government, particularly the federal judiciary, continue to trample the Constitution as it stampedes over its checks and balances. If we fail, you may see the tyrannical results in your very own backyard.

In order to slay this beast of Judicial Activism, the Congress (in whom the Founders assigned the most power) must awaken, reject its union through inaction with the judiciary and use its constitutionally assigned powers for the purpose of checking and balancing the judiciary. The Congress has the power to pass constitutional amendments which can decide issues for the courts, it can reduce the jurisdiction of the courts so that they cannot hear certain types of cases, it can impeach judges, it can refuse to fund the courts, etc. The Congress has many tools at its disposal and it must use them in order to bring the powers of the federal branches of government back into balance with one another.

"...liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments."
-Alexander Hamilton, Federalist No. 78, 1788