Judicial Review is Not Judicial Activism

By: Craig Chamberlain

It takes a lot of Chutzpa for a group of hypocrites to accuse someone else of hypocrisy. But that is exactly what we have with the Democratic party in the case of Obamacare. The Democrats, you see, think that it is unfair that a group of unelected judges should have the final say about the constitutionality of the bill. It’s hypocritical for Republicans, who often complain about judicial activism, to pin their hopes on the court to strike down a law they hate. Isn’t that also judicial activism, they ask?

Not in the least. The judiciary has a constitutionally defines role. They are allowed to settle disputes when the parties are from two or more states, or from out of the country, when federal law is being applied and to determine the constitutionality of a law. This is called judicial review. Most people think that it dates back to Marbury V. Madison(1803) when Chief Justice John Marshall(1801-1835) declared that the court has the right to strike down a law that goes against the constitution of the United States. Marbury didn’t create new precedent, but simply affirmed an old one, the idea of judicial review predates Marbury, it even predates the constitution itself, going back to English common law. Alexander Hamilton used the idea when arguing before the courts in New York before the constitution was ratified. The idea of judicial review was well established by the time Marshall came to the bench and he used it many times to strike down laws, or uphold laws to protect property rights, and defend contract law.

Judicial activism started with the next court, and is largely a product of the Democrats. Marshall’s successor, Roger Taney(1835-1864), was a political lapdog of the Democratic party and specifically to the southern planter class that dominated it at that time. Taney’s most famous decision was Dredd Scott(1857). The Dredd Scott case is the textbook example of judicial activism. The Congress had been unable to create a policy about the expansion of slavery into the western territories acquired after the Mexican American war. Taney, most likely at the behest of President James Buchanan, took it upon himself to create the policy that Congress was unable to  do.

Scott was a slave who sued in court, claiming that when his owner had taken him into a free state, he had become free himself. The case had nothing to do with slavery in the west but Taney wanted to end the debate once and for all and end it in the south’s favor. He issued a sweeping ruling that went far beyond the question of Dredd Scott’s freedom. He declared that no person of color could ever be a citizen, even if born free. This was never part of the case but something Taney wanted to address. That a slave was a slave everywhere even in the free states of the north, and that the federal government had no right to limit slavery in any size, shape, or form(again this was not part of the original argument). This is judicial activism, a judge acting as Congress, President, and Judge all in one. The Democrats were thrilled with the Scott decision, believing that it had settled the pesky issue of slavery once and for all. Republicans were appalled as they believed that the decision would further drive north and south apart and lead to civil war.

Roe V. Wade was another example of judicial activism. The Burger court declared 7-2 that any restriction on abortion was unconstitutional. In one proclamation the court erased the rights of the states to regulate the procedures as they saw fit. Contrary to leftist propaganda abortion was not illegal before the Roe decision, it was regulated by state governments. Some states allowed it, some states forbade it, and some states allowed it within certain limitations. Roe ended that. Now all states must allow abortion at any time for any reason. This decision was reached not because there was an iota of law to back it up but because 7 justices felt that abortion should be legal.

Another example of judicial activism is Judge Vaughn Walkers recent decision to overturn the people of California and their decision to limit marriage to one man and one woman. Walkers hysterical, angry, and paranoid decision proclaimed that any restriction on gay marriage could only result from bigotry, and any attempt to restrict the practice is a violation of civil rights, and is therefore unconstitutional. This case is headed to the Supreme Court where, I confess, I’m pessimistic about the court standing up for traditional marriage. Gay marriage whether we like it or not, and after that comes polygamy, but I digress.
President Obama claims that it would be unprecedented for the court to strike down a law that was passed by overwhelming majorities in Congress. That statement is a lie on two counts. First it would not be unprecedented. From 1803, when Marbury was decided, until 2002 the court struck down over 1,300 federal statutes. The court has been doing this for two centuries, as they are supposed to. The second lie is that this bill passed by large margins in Congress. The Obamacare legislation made it through the house 219-212, a whopping margin of 7 votes. It got through the Senate because Harry Reid and Nancy Pelosi invoked reconciliation and allowed passage by a mere majority. It got no GOP votes in either the House or the Senate.

For the court to strike down Obamacare would not be an unprecedented action of extra constitutional power, but a legitimate exercise of constitutional power that the court is supposed to possess in the first place. We conservatives are right to criticize judicial activism, and should criticize it if it ever comes from a conservative judge. But it is not activism for the court to do it’s job, and it’s not hypocritical to hope that the court does its job and kills Obamacare.

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