Gary M. Galles - Contributor
Galles is a professor of economics at Pepperdine University.
[go to Galles index]
Judicial activism and Federalist 78...
[Gary M. Galles] 10/28/04
announcement of Chief Justice Rehnquist's treatment for thyroid
cancer a week before the election has diverted
it to a real issue-the Supreme Court. Republicans are warning
about activist judges, and Democrats are trying to pin the same
label on prospective Republican nominees, who might roll back
earlier court precedents.
this exchange of judicial activism charges mis-states the central
issue, which is not whether the
Court will be active, but what principles will inform its activity. Federalist
78, by Alexander Hamilton, explains those principles.
Hamilton seems to condemn judicial activism:
"The judiciary...can take no active resolution
whatever. It may truly be said to have neither force nor
will but merely judgment."
can be of no weight to say that the courts...may substitute
their own pleasure to the constitutional
intentions of the legislature."
judiciary, from the nature of its functions, will always be
the least dangerous to the political
rights of the Constitution; because the least in a capacity to
annoy or injure them."
passages, however, do not imply inactive courts. Judges are
not to act based on their own preferences,
but they are to actively strike down what is inconsistent with
the Constitution. They are not to invalidate laws
consistent with the Constitution, but not everything Congress
enacts is Constitutional. And the judiciary is the least
dangerous branch only when it refrains from actively creating
deviations from the Constitution.
Federalist 78, in fact, describes courts that
must be active, although only in a very limited way.
"...the courts of justice are to be considered
as the bulwarks of a limited Constitution against legislative
"The complete independence of the courts
of justice is peculiarly essential in a limited Constitution...which
contains certain specified exceptions to the legislative authority...Limitations
of this kind can be preserved in practice no other way than through
the medium of courts of justice, whose duty it must be to declare
all acts contrary to the manifest tenor of the Constitution void. Without
this, all the reservations of particular rights or privileges
would amount to nothing."
courts were designed to be an intermediate body between the
people and the legislature...to keep the latter
within the limits assigned to their authority."
it be said that the legislative body are themselves the constitutional
judges of their own powers...this
cannot be the natural presumption where it is not to be collected
from any particular provisions of the Constitution."
the will of the legislature, declared in its statues, stands
in opposition to that of the
people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former."
"No legislative act, therefore, contrary
to the Constitution can be valid. To deny this would be
to affirm...that men acting by virtue of powers may do not only
what their powers do not authorize, but what they forbid."
a particular statute contravenes the Constitution, it will
be the duty of the judicial tribunals
to adhere to the latter...to guard the Constitution and the rights
Hamilton asserts that courts are not to substitute
their desires for Constitutional laws, but that they must vigilantly
maintain Constitutional rights against executive or legislative
branch overstepping of their enumerated powers.
individual oppression may now and then proceed from the courts
of justice, the general
liberty of the people can never be endangered from that quarter;
I mean so long as the judiciary remains truly distinct from both
the legislature and the executive."
can have nothing to fear from the judiciary alone, but would
have everything to fear from its
union with either of the other departments."
Hamilton argues that a judiciary appropriately
constrained by the Constitution is not a threat to citizens'
rights, but one that actively deviates from its Constitutional
authority by exercising legislative or executive powers would
be the most dangerous branch.
78 shows that neither an inactive court nor one exercising
unconstrained activism accords with
the Constitutional intent of our founders. It brings us
back to the court's proper role--active guardian of the Constitutional
rights of citizens and the Constitutional limitations on federal
power, not an active subverter of those limits or a passive accomplice
to subversions by other branches of government. This should be
the litmus test for judicial appointments, and for the candidates
who would make them. CRO
2004 Gary M. Galles