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Gary M. Galles - Contributor

Mr. Galles is a professor of economics at Pepperdine University. [go to Galles index]

Judge Judges
Judicial activism and Federalist 78...
[Gary M. Galles] 10/28/04

The 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.

Unfortunately, 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."

 "It can be of no weight to say that the courts...may substitute their own pleasure to the constitutional intentions of the legislature."

 "...the 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."

These 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 encroachments."   

"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."  

"...the 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."

"If 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."

"...where 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."

"...whenever 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 of individuals..."

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.

 "...though 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."

"...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."

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.

Federalist 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

copyright 2004 Gary M. Galles

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