[Today’s post is from a guest contributor. Meet articulate brother #1…]
Last week, the United States Senate confirmed Neil Gorsuch as the newest member of the Supreme Court. I am a fan of Gorsuch because he adheres to the judicial philosophy of originalism. What exactly does originalism mean?
Some people view judges as having the ultimate say in what our laws should be. That is not what the founders of our country intended. The judicial branch is just one of three coequal branches of government. As we all remember from elementary school, the legislative branch makes the laws, the executive branch administers the law, and the judicial branch interprets the law. Plain and simple, it is not the courts’ responsibility to make law, nor should they make law.
Originalists like Gorsuch (and me) believe that the proper way to interpret law is to ascertain its original meaning, or in other words, what those who wrote the law were thinking when it was passed. If the text of a law is silent on an issue, it is not up a judge to determine what it should say. That is up to the legislature.
Unfortunately, not all judges are originalists. Many are judicial activists who allow their personal opinions to influence their decisions. Instead of following the text of the law and allowing it to lead them to a conclusion, they choose the outcome they want and then twist words into their own desired meaning to get to that outcome.
In a democracy, it is vital that courts, especially the Supreme Court, refrain from making law. Because justices aren’t elected and have lifetime tenure, we can’t hold them accountable if they make laws we don’t like. If we don’t like laws that legislators make (or if they won’t pass laws that we want), we can get new legislators.
An egregious example of judicial activism was a 1965 case called Griswold vs. Connecticut. The state of Connecticut had a law on the books at the time that prohibited the use of contraceptives. Now I think most of us would agree that is a stupid law, but here’s the thing: if Ms. Griswold thought it was a stupid law, she should have lobbied her legislature to repeal it. That’s the way our system is supposed to work.
Instead, the Supreme Court found that although the Bill of Rights of the U.S. Constitution didn’t explicitly declare a right of marital privacy, there is a “penumbra” of undeclared rights as such and therefore overturned Connecticut’s law as unconstitutional.
Let me be clear… I am not taking issue with the result in this case as unjust. I think the people of Connecticut should be free to use contraceptives as they see fit. The problem is how the courts came to that result. By their very nature, the edges of penumbras are blurry and not well defined. If indeed the Constitution has an enforceable penumbra, what other rights are included? The right to smoke marijuana? The right to own an automatic weapon? The right to assist in a suicide? The right to free health care?
We would all disagree on what’s within the penumbra and what’s outside. If unelected judges determine what’s in or out, that’s not democracy; that’s despotism. Therefore the whole concept of a Constitutional penumbra should be rejected and only the text of existing law should guide judges.
Note that judicial activists can be either liberal or conservative, although there are many more instances of liberal judicial activism in the fifty years since Griswold, for example on abortion and gay marriage. It is inappropriate for judges to allow their personal feelings to influence the outcome of a case, regardless of their political leanings.
It used to be that judicial activists were less conspicuous with their law making. Now that the practice is commonplace and difficult to hide, judges have become overt about their intentions. Just last week, the 7th Circuit Court of Appeal (which is comprised of Wisconsin, Illinois, and Indiana) in Hively vs. Ivy Tech Community College, ruled that the 1964 Civil Rights Act which bars employment discrimination on the basis of sex bars employment discrimination on the basis of sexual orientation as well.
No one believes that the original intent of the 1964 Congress was to include sexual orientation as a protected class in civil rights law. It is striking that Judge Richard Posner acknowledges that fact but brazenly admits that he and his colleagues are making law. For an excellent write-up on Judge Posner’s opinion, see Josh Blackman’s blog at http://joshblackman.com/blog/2017/04/05/judge-posners-judicial-interpretive-updating.
Allow me to reiterate: I don’t think employers should fire someone just because they are gay. Yet, if we the people want a law to prohibit such discrimination, the proper channel to bring about that change is through the legislative branch, not the judicial. Otherwise, we will cease to live under the rule of law and will have embraced the rule of men.
Respectfully…
Pete
The moment of truth in a judge’s life comes when everything within them believes that a certain decision is right, but the law says something else. If they go with their beliefs rather than the law, they become a dictator rather than a judge.