The Founders recognized that too much power accumulated in any single branch of government is a significant threat to liberty. They sought to avoid this by separating power, both among the three branches of the federal government and between the federal government and the sovereign states, in a system of checks and balances that would prompt ambition to counteract ambition. They gave each branch authority to exercise and an interest in defending its own prerogatives, limiting the ability of any one branch to monopolize governmental authority. Accordingly, the Founders vested the power to make the laws in Congress, the power to enforce the laws in the President, and the power to interpret the laws in deciding concrete factual cases with the courts.
In explaining judicial power under the Constitution, Alexander Hamilton noted that the courts would have the authority to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. Any law contrary to the Constitution was void. The Supreme Court of the United States famously announced its authority to rule, as necessary to decide cases, on the validity of laws—known as judicial review—in Marbury v. Madison. In that decision, Chief Justice John Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is.”
However, the Marbury Court did not claim that the courts possessed the exclusive or supreme authority to interpret the constitutionality of laws. The other branches of government have an independent obligation to uphold the Constitution. The President takes an oath to “preserve, protect, and defend” the U.S. Constitution and the Constitution assigns the President the duty to “take Care that the Laws be faithfully executed,” which requires the President not to enforce that which is not the law due to unconstitutionality. The President is not, of course, free to decline to enforce a law for policy reasons.
Members of Congress take an oath to support and defend the Constitution. Congress interprets the Constitution in deciding which laws to enact. Congress may (and does) choose to enact or reject legislation for political or policy reasons. When its Members reject legislation that would violate the Constitution, they are acting in accordance with their oaths; when they pass legislation that violates the Constitution, they are not.
The proper role of a judge in a constitutional republic is a modest one. Ours is a government of laws and not of men. This basic truth requires that disputes be adjudicated based on what the law actually says and according to its original public meaning rather than the whims and personal wishes of judges. Judges must apply the law, interpreting the law and measuring it against the Constitution when necessary, to decide cases. That is their limited function.
In determining whether a contested law is consistent with the Constitution, judges act within their proper judicial power when they give effect to the original public meaning of the words of the law and the Constitution. Judges acting in accordance with their constitutional duties will at times uphold laws that may be bad policy and strike down laws that may be good policy. Judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.
In recent decades, some judges have engaged in judicial activism, deciding cases according to their own policy preferences rather than by applying the law impartially according to its original public meaning. They have become enamored of ideas like “living constitutionalism,” the theory that the Constitution evolves and changes not through the amendment process set out in the Constitution itself, but as a result of the decisions of judges reflecting social change with their decisions.
Several egregious examples of judicial activism have occurred over the past decade at all levels of the judiciary.
The outcome of many other cases currently pending in courts across the country will depend on whether the judges deciding the cases adhere to what the Constitution requires or decide to adhere to their personal policy preferences. Regrettably, President Obama has said that he wants to appoint judges who will make decisions based on “empathy.”
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