Judicial activism seems to this conservative to be one of the
most significant threats to liberty facing the citizenry. Why is an
understanding of judicial activism important?
Judicial activism seems to this conservative to be one of the most significant threats to liberty facing the citizenry. Why is an understanding of judicial activism important? For the same reasons that actions of the President, Congress, and state and local governments are important – because as Americans we believe in the consent of the governed. Judges impact us directly and unconstitutionally when they usurp the functions of the legislative or the executive branches.
Two particular events during the period 1947 to 1953 are worthy of mention in the development of the activist judicial. These are the development of the “Incorporation Doctrine” culminating in the 1947 opinion of Justice Hugo Black, and the elevation to Chief Justice of the Supreme Court of Earl Warren of California by President Dwight Eisenhower in 1953. Earl Warren and the Incorporation doctrine: the confluence of these two events set the stage for a broad-based increase in proactive judicial activity, in essence a perfect storm for the rise of judicial activism.
The incorporation doctrine says that the Fourteenth Amendment should be interpreted to mean that the blessings of the first ten amendments to the Constitution, the Bill of Rights, should apply to the states as well as to the Federal government. The Bill of Rights is thus “incorporated” or merged into the Fourteenth Amendment allowing for its application to the states.
The Fourteenth Amendment to the Constitution was ratified in 1868, to provide Constitutional authority for the Civil Rights Act of 1866. The purpose of that act was to protect the rights of recently emancipated slaves in the South, thus assuring that freed slaves would enjoy the full liberties accruing to citizens. The Fourteenth Amendment states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Prior to the 1920‚s the consistent interpretation of the Constitution, including the Fourteenth Amendment, had been that the Bill of Rights applies only to legislation and actions of the Federal government. The protections intended by the Fourteenth Amendment, were spelled out by the 39th Congress in the Civil Rights Act of 1866, including the right to make and enforce contracts, etc. Not mentioned are the protections of the Bill of Rights.
In the 1920s the concept of “incorporating” the Bill of Rights began to gain ground in the courts. In Giltlow v. New York the Supreme Court agreed that freedom of speech and the press are incorporated by the Fourteenth Amendment. By 1947, in the case of Adamson vs. California, the Supreme Court incorporated the establishment clause (religion) of the First Amendment. Justice Hugo Black’s opinion concerning this case stated, “no state could deprive its citizens of the privileges and immunities of the Bill of Rights.” Therefore the Fourteenth Amendment “incorporates” the Bill of Rights thus applying it to the states. The floodgates had opened. It remained for the Warren court to seize the opening and remake the relationship of the Federal Government to the states. We will discuss this subject in the next column.
The judicial branch had acted improperly in two ways. First, the Supreme Court ignored the concept of “original intent” in implementing the incorporation doctrine, for the historical record clearly shows the writers of the Fourteenth Amendment did not intend to include the Bill of Rights under the amendment. The second point is that the Supreme Court ignored the clear language of the Fourteenth Amendment itself, where section five states: “The CONGRESS shall have power to enforce, by appropriate legislation, the provisions of this article.” The Congress – not the judges.
The core issue is not whether the actions taken by the Courts following the incorporation doctrine are good or bad; the point is that the people’s central right of self-determination has been savaged by judges. We elect congressmen by voting for the constitutional purpose of legislating. Why then should we as citizens allow un-elected lawyers to pre-empt our duly elected representatives? Therein lies the danger to Liberty of judicial activism.
I wish to thank an alert reader Luke who pointed out a mistake in a previous column. The saying “Give me Liberty, or give me death” should be credited to Patrick Henry, not Thomas Paine. Of course, my blunder.
Al Kelsch lives in Hollister with his wife Judy. They both enjoy running and singing. E-mail him at [email protected].
