America's founders knew that, if left unchecked, government power will always grow and undercut liberty and self-government. The judiciary is today proving the founders correct. Operating unchecked for generations, judges routinely reach beyond the "judicial power" granted by the Constitution and exercise legislative power they do not legitimately possess.
Judicial activism exists in part because Congress refuses to exercise the checks and balances the founders crafted. One of these is impeachment. Rep. Tom DeLay (R-TX) recently drew howls of protest from the legal establishment and political left by suggesting that Congress revive this check on excessive judicial power. Rep. DeLay, however, is on solid ground. His critics like activist judges because they like what those judges do; they are simply not honest enough to say so. But it is Rep. DeLay’s view of a judiciary exercising only judicial power, checked if necessary with the tools provided by the Constitution, that resonates with America's founders.
Activist judges claim the power to make our laws mean anything they wish. They practice Chief Justice Charles Evans Hughes' maxim that the Constitution is whatever the judges say it is. As President George Bush put it, they legislate from the bench. Even Humpty Dumpty could define judicial activism when he declared: "When I use a word, it means what I choose it to mean -- neither more nor less." If judges have the power to determine the meaning of our laws, however, they have the power to make our laws. That is a power legitimately exercised only by the people and their elected representatives.
America's founders intended that Congress impeach activist judges. In The Federalist No.81, Alexander Hamilton argued that "the supposed danger of judiciary encroachments on the legislative authority...is in reality a phantom." Why? Because, wrote Hamilton, "there never can be a danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with [impeachment]."
The Constitution allows impeachment for what it calls "high crimes and misdemeanors." Advocates of unlimited judicial power yank this phrase from its constitutional moorings and give it whatever narrow meaning is convenient for their argument. American Bar Association President N. Lee Cooper repeated the current myth in this paper by arguing that judges may only be impeached for a "criminal act."
This bizarre theory has never been true and Mr. Cooper's reliance on high school civics for this theory demonstrates the dangers of both make-it-up-as-you-go judicial activism and the dumbing-down of American education. Arrayed against his position, however, is nothing less than 600 years of English and American legal and political history.
According to Professor Raoul Berger, impeachment was created precisely because some actions for which public officials should be removed from office are not covered by the criminal law. The phrase "high crimes and misdemeanors" already had 400-year-old roots in English common law when the framers placed it in the U.S. Constitution. English judges were impeached for misuse of their official position or power, mal-administration, unconstitutional or extrajudicial opinions, misinterpreting the law, and encroaching on the power of the legislature.
The Constitution's framers also believed that impeachable offenses extended beyond indictable offenses. When they settled on the phrase "high crimes and misdemeanors," for example, George Mason and James Madison believed it included attempts to subvert the Constitution.
All of these are features of the judicial activism that today undermines liberty and self-government. Activist judges do not simply make decisions someone does not like; they exercise power they do not legitimately possess. If a willful exercise of illegitimate power is not impeachable, nothing is.
Faced with these facts, apologists for unlimited judicial power retreat to the cliché of "judicial independence." They never utter a word when judges illegitimately steal legislative power, but suddenly discover judicial independence and the separation of powers at the suggestion of Congress legitimately checking judicial power. Checks and balances, however, cannot work only in the direction one likes.
Were judicial independence an end in itself, it would become the judicial license that America's founders knew would threaten liberty and self-government. Rather, judicial independence is a means to the end of a judiciary exercising only the "judicial power" granted by the Constitution and leaving the lawmaking to the legislature. When judges go beyond their proper role and make up new meanings for our laws, it is those judges who violate their own independence and make necessary the checks and balances, such as impeachment, provided by the Constitution.
If you have any questions or would like more information about judicial activism, please contact us at Judges@fcref.org.