When Associate Justice Antonin Scalia sat on the Supreme Court, he advocated for an originalist interpretation of the Constitution based on the words that actually appear in it. He was not a proponent of judicial activism, but rather of judicial constraint. Do the facts of a case comport to the letter and intent of the Constitution as it was written? He was also very much a guardian of the separation of powers doctrine that appears in the Constitution. For Scalia that meant that one branch of government should not encroach on the powers of another.
We have witnessed much of that in recent years where Presidents have attempted to assert their will on Congress when the latter had not been willing to do the executive’s bidding. Likewise, Congress has sought to pass laws encroaching on the executive branch. But more disturbing is the inclination of judges, particularly those with a bent toward judicial activism, to legislate from the bench. This amounts to a rejection of the legal maximum Jus dicere, et non jus dare, that is “to declare the law, not to make it.”
For almost a century now, we have witnessed an increasing reliance on judicial activism by the courts—with the complicity of Congress and the Executive—to justify certain policies that have no basis in the Constitution, especially those extending the power of government into areas of our lives that the Founders never intended. Activist judges—unelected ones—have become on-man legislatures. They treat the Constitution as a “living” one. That malleability allows them to interpret the Constitution to mean whatever they need it to mean to satisfy their personal policy preferences. That is entirely wrong, even if their allies in other branches agree with them.
Scalia was disdainful of this practice and made himself quite clear about it. Speaking of lawmaking he said this:
“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Unfortunately, the courts have become the place spineless legislators turn in order to accomplish that which is not permissible in the Constitution. The assault on the Second Amendment comes to mind where laws are passed that are patently unconstitutional in the hope that activist judges will find constitutional permissibility where there is none. In such a case, our individual rights are left vulnerable to a courtroom legislature.
The corrupt judicial practice of legislating from the bench is itself unconstitutional. Yet Congress permits it. In doing so, Congress has grossly violated what is known as the doctrine of nondelegation, whereby one branch of government must not surrender its power to another branch, thus upsetting the nature of the separation of powers between branches. Each branch has a duty to jealousy guard its enumerated powers as defined in the Constitution while not trespassing on the prerogatives of other branches.
In this regard, the judiciary has wandered away from its fundamental purpose as envisioned by the Founders. When the courts are acting properly, they are the guardians of our enumerated rights as well as a check on the other branches of government to ensure one branch does not trespass on the enumerated powers of another. But that is precisely what the Congress has done repeatedly when they look to the courts to do the heavy lifting of legislating from the bench, a malpractice the judiciary seems willing to shamelessly commit.
In the past, advocates of an originalist interpretation of the Constitution have sought to rein in judicial activism that curtails enumerated rights while substituting others that do not exist in the Constitution. Judicial activism should be constrained. But we also need the application of what is termed “judicial engagement” where the judiciary breathes new life back into the doctrine of enumerated powers by insisting that the separation of powers be enforced, including the doctrine of nondelegation.
In other words, the courts must once again not only interpret the Constitution based on what is in the document, its words, but also something else. It also must coincidentally impose on all of the branches a discipline to stay within their enumerated powers as articulated in the Constitution, not going beyond them, and certainly not trespassing on the powers of other branches.
Thinker and writer Charles Krauthammer once observed that containing the government cannot be achieved simply by asserting individual rights alone. It also requires the branches stay within their enumerated powers to ensure “that government’s power ends long before it intrudes upon the individual rights in the 10 Amendments.”
It is for that reason we need justices on the Supreme Court who do not see what is written in the Constitution as mere suggestions, but rather as the law of the land.
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