Who Shall Govern?

Donald Sensing has an excellent essay on the frustrations of judicial activism in general, and the Massachussets ruling on gay marriage in particular:

The court’s ruling to permit homosexual marriages will go into effect this May regardless of what the legislature does. Even if the legislature passes today an amendment to the constitution prohibiting homosexual marriage, the earliest the amendment could take effects is late 2006.

In my opinion, this ruling is as clear a case of judicial overreach and activism as can be found. The idea that the constitution’s framers had homosexual “marriage” in mind when they wrote the constitution, so long ago, is simply ludicrous.

Agreed. Regardless of the merits of the issue–and I’m more in agreement with the judges than the legislators on this one–the process here turns the system on its head.

In the American Constitution, there are more and more effective checks and balances of the Congress and the President against one another than either branch combined has against the judiciary.


The Founders unambiguously understood that,

  • “The Judiciary is beyond comparison the weakest of the three departments of power” (Federalist 78),
  • the power of the Congress was to be superior to the judiciary (Federalist 51),
  • the Congress, not the courts, was to be the safeguard of the rights and freedom of the people (Federalist 49).

    What has happened over about the last four decades (Scalia’s timeline) is that the belief in a “living” Constitution has politicized the appointment process of judges to a much greater level than ever before. Instead of the national and state legislatures confirming judges on the basis of whether they will conform rulings to the constitution concerned, they are insisting that the judge ensure his reading of the constitution comports with the legislators’ own political agenda.


    In so doing, the people are shunted aside. The power to make the most major decisions affecting the order of society are taken from their hands by subterfuge. Increasingly, our votes at the ballot have less and less effect on what happens in government – and thus, what happens to us.

  • The irony is that the Judiciary is indeed the least dangerous branch, in that it has no real power to enforce its dictates. Presidents could–and in rare instances have–simply refused to use the tools at their disposal to enforce judicial orders. And Congress is under no obligation to fund judicial whims, either.

    Also, Article III gives Congress the explicit power to limit the jurisdiction of the courts. It’s a wonder it isn’t used more.

    FILED UNDER: Law and the Courts
    James Joyner
    About James Joyner
    James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


    1. Beldar says:

      Limiting courts’ jurisdiction by statute to exclude certain types of controversies is a problematic notion. There are checks and balances that can reign in judicial overactivism short of that extreme solution.

      This past fall in Texas, for example, there was a major tort reform initiative passed via amendment to the state constitution — Proposition 12. Prop 12 was a response to a 1988 decision of the Texas Supreme Court — a precedent set during the waning years of the very liberal, very activist, plaintiffs’ personal injury bar-dominated “Sixty Minutes” court — that created out of whole cloth a supposed “constitutional right” of plaintiffs that was held to eliminate the Legislature’s power to cap noneconomic damages (e.g., damages awarded for pain and suffering). The public relations campaigns for both sides argued the merits of such caps; I was one of very few who argued that the real significance was less as a tort reform measure per se, but a redressing of an outrageous power grab by the Texas Supreme Court as it was then constituted, since the constitutional amendment was simply returning to the state legislature the normal power to regulate civil tort law that it had always been presumed to possess before that 1988 decision.

      Prop 12 passed, narrowly. And fortunately, there has been little need for constitutional amendments in Texas to reign in judicial overactivism. The Texas Supreme Court’s composition since the early 1990s — corresponding directly to the Republican party’s shift into the majority party in Texas, where judges at all levels are still elected directly by the public in partisan elections — has changed dramatically since 1988; and this particular instance of judicial overactivism was simply a remnant, a last vestige, of a court that the voters had methodically reassembled into a more judicially conservative body.

      The best remedy for judicial overreaching remains at the ballot box.

    2. James Joyner says:

      Except that federal judges aren’t elected. We’ve still got a man on the Supreme Court, John Paul Stevens, appointed by Gerald Ford. There are likely judges at lower levels still hanging on from the Johnson administration.