The Problem With Activist Jurisprudence

Judges are not philosopher kings, no matter what they may believe in their heart of hearts. Their continued failure to recognize their subordinate role in the constitutional order endangers the whole structure. Such activist judges tend to write in terms of sweeping principle not explicitly contained in the Constitution. Consider this famous example from Planned Parenthood v. Casey, devised by Justices Kennedy, O’Connor, and Souter.

"Intimate and personal choices," the justices wrote, are "central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Such a principle sounds reasonable, but it contains in it the seeds of many a decision overturning long-standing legal principles and time-honored laws supported by the people. It was used in Lawrence v. Texas to knock down the Texas sodomy law, and has been cited by those out to legalize homosexual marriage. James Taranto points out the problem with reliance on such a judicially created principle.

Abortion and same-sex marriage, by contrast, do spark strong opposition, but not on privacy grounds. Abortion opponents argue that life before birth is worthy of legal protection, while the case against same-sex marriage is that it confers public approval on gay relationships--approval the New York and Massachusetts courts have given without public consent.

When judges find rights in hidden constitutional meanings, they run a twofold risk. If they limit those rights, striking balances and compromises between such competing values as privacy vs. life or privacy vs. morality, they act as politicians, only without democratic accountability. The alternative, to let those rights expand without limit, seems more principled and thus is more appealing. But it ignores democracy's most important principle of all: the right of the people to govern themselves.

In effect, the judges limit the people and their elected representatives to the regulation of matters that are unimportant, reserving to themselves the role of determining what the law shall be on important matters. This overthrows the constitutional understanding of our republican form of government by making judges, rather than the people, supreme. And if the supremacy of the people is eliminated, does it not take with it the legitimacy of the government?