Utah Bar Journal

Those in favor of judicial activism prefer courts, particularly the U.S. Supreme Court, leading, rather than following, the course of public opinion; ruling in accordance with what they deem to be "fundamental principles," even when the people do not generally assent to those principles.1 They assert that it is the proper role of the courts to stretch the meaning of existing constitutional and statutory law in the quest for greater economic and social equality.2 Accordingly, old restrictive notions of what the U.S. Constitution means must give way to new, expanding and inclusive interpretations. Otherwise, our supreme law becomes stale, hidebound, and unresponsive to changes in society.

Unfortunately, in a quest to resist the tyranny of the majority, creeping judicial activism has in fact produced a new form of tyranny - the tyranny of the courts. Bit by bit, this tyranny is eroding democracy and replacing it with something akin to judicial oligarchy. To prevent further erosion, there appears to be only one effective option - amend the U.S. Constitution.

Tyranny
The term "tyrant" includes anyone who exercises absolute power without legal warrant, whether ruling well or badly.3 In the realm of constitutional interpretation, the Supreme Court has absolute power. Their word is law, and it is the final word. If the Court misconstrues a statute, Congress can presumably revise the statute; but when the Supreme Court declares that the Constitution means "X," there is no recourse.

Merely wielding this power is not the problem, however. Judicial review is a natural and inherent aspect of the judicial function, and was anticipated by the founders of our country.4 Our constitutional system created, and reason and order demand, a court of last resort, empowered to make final determinations of legal cases and controversies. The real problem arises from the second element of tyranny - the question of legal warrant. This question requires a consideration of the scope and source of the Supreme Court's authority.

Constitutional Authority
The Constitution grants no legislative authority to the courts. The courts are given only "judicial power." Accordingly, when any federal court attempts to perform any legislative function, it steps outside its legally warranted realm of power. While it can be difficult to fully distinguish the legislative function from the judicial function, a basic distinction can be made: the legislative function is to select and establish public policy through the enactment of positive law while the judicial function is to enforce the policy choices of the legislature.

The judicial function also includes enforcement of the policy choices of the people as embodied in the Constitution and this is where most of the mischief begins. The Constitution declares itself to be the supreme law of the land; but that declaration only has weight because it was democratically accepted by the people. The authority of the Constitution does not lie in the beauty and majesty of the principles of liberty that support and sustain it, nor in any other lofty principle or philosophical ideal. We the People ratified the Constitution, by a supermajority, through our elected representatives. In fact, we did it twice - first at the federal level, and then again state by state. The Constitution therefore represents the will of the people.

The key question then is, what is the will of the people as declared in the Constitution? What did the people adopt? The only legitimate answer to that question is, that which is expressed in the language of the document itself. Despite the philosophical motivations behind the Constitution, the people did not adopt a philosophy as their law. They did not adopt an idea, a set of principles, a penumbra, or an emanation. They adopted certain language, stating the form and limits of power of the new government, and enumerating certain rights of the people. Each time the Court expands these rights beyond the fair reach of the text, and declares that the Constitution embodies this or that evolving notion, or discovers within the text new rights that are not actually mentioned, our democracy shrinks Ð because Constitutional rights trump any legislative enactment. This exercise, undertaken to establish any new public policy, is judicial activism, and is actually a usurpation of the legislative function.

The notion of a "living" or "evolving" Constitution was invented merely to support judicial activism. This notion is as ridiculous as that of an evolving contract or deed. As Justice Antonin Scalia recently pointed out, "[t]he Constitution is not a living organism . . .; it's a legal document and, like all legal documents, it says some things and it doesn't say others."5 Indeed, the "evolving" Constitution metaphor contradicts the very principles of evolution. Individual organisms do not evolve. Evolution is a process through which individual organisms die and are replaced by offspring with different characteristics, this process happening repeatedly over time. The only way the Constitution could actually evolve would be through its death and replacement with a new constitution. This can only be accomplished through a constitutional convention, not by unilateral action of the Court.

The prospect of an evolving Constitution was one that some original critics of the plan feared. They feared that a politically insulated judicial branch would have "[t]he power of construing the laws according to the spirit of the Constitution, [so as to] enable that court to mould [sic] them into whatever shape it may think proper."6 Alexander Hamilton responded to this criticism by pointing out that there is nothing in the Constitution that empowers the national courts to do that. Unfortunately, there is nothing in the Constitution that directly prevents it, either.

The condition feared in Hamilton's day has literally come to pass in ours. Rather than enforcing the terms of the Constitution itself, the Court has, in selected areas of law, enforced this or that abstract philosophical principle that it argues underlies and gives meaning to the Constitution. The result has been astonishingly unsupportable decisions where the outcome is entirely dependent upon the level of abstraction in stating the issue, and upon the particular political or moral philosophy that the Court holds at the time.

One source of this problem is the tendency of American courts to apply principles of common law development when interpreting constitutional or statutory texts.7 This presents a multitude of troubles. These two types of law are inherently different, and must be applied differently. Under the common law, a judge can distinguish past precedent to produce justice in a given case, even if that means applying current social and moral viewpoints that previously were not generally accepted. Judges, not the people, create the common law.

But judges do not create positive law. With respect to democratically-adopted positive law, the only political, social, or moral philosophy that legitimately can be acted upon by the courts is that embodied in the language of the law, because that is all that can be said that the people agreed upon. Anything else involves setting out upon an undifferentiated sea of moral philosophy, to be tossed about with every wind and wave of intellectual fashion. In this act the Court usurps a legislative role and thereby steps outside its legally warranted realm of authority.

A Constitutional Solution
Since the people are the source of constitutional authority in the first place, the people have the power to restrain the courts. But there is only one way to do it - by amending the Constitution. Any legislative attempts could simply be struck down or interpreted out of existence.

A constitutional amendment to restrict judicial power is both necessary and appropriate. It is necessary because the brevity of Article III cries out for clarification. Article III, at only 369 words, does not define the reach of the Court's power. The result has been that the Court, unlike any other branch of government, has been the arbiter of its own power for over 200 years. Moreover, the Constitution includes within itself no rules for its own interpretation and application. Without such rules, there are almost as many approaches to interpretation as there are judges.

A constitutional amendment is appropriate because this is a clear issue of constitutional stature. Unlike marriage or flag burning, the scope of power of the judiciary is of the highest constitutional importance. It is appropriate to constitutionally codify basic limits on judicial power, and standards for the interpretation of positive law.

There are a variety of proposals for amending the Constitution to tame the courts. Unfortunately, some of these, like creating a legislative veto power over Supreme Court decisions, or limiting the terms of federal judges, are wrongheaded because they hinder the independence of the judiciary and simply inject more politics into the courts, not less. The only solutions that have a chance of working without compromising the independence of the judiciary are those that affect what a court can do, and how it must do it.

There are a number of possible approaches for this. One approach is to try to clearly define the judicial role vis a vis the legislative role in terms of policy-making power. It also seems possible that a rule could be created to distinguish, at least in part, nonjusticiable political questions from proper judicial cases. Another approach is to enumerate a broader scope for rational basis adjudication. Another aspect of the problem may be solved by codifying some of the canons of statutory construction, such as the rule of silence: where positive law is silent, the courts are powerless to act, except under the common law.

Some of the above options are admittedly difficult to express in clear and broad terms, and an investigation of all of them is beyond the scope of this article. However, there is one additional option that seems to stand out above the rest. The fundamental importance of the text of the Constitution and laws as the source of meaning suggests a solution by codifying the plain meaning rule in a constitutional amendment. Language to accomplish this could read as follows:

No court of the United States shall interpret or enforce any provision of positive law in any manner contrary to its plain meaning, as generally understood at the time of enactment, whether to enlarge or contract the scope thereof.

This language requires courts simply to enforce laws according to their terms. This is, in fact, what courts do most of the time. The temporal limitation points out the obvious fact that written words can legitimately be interpreted only according to their generally accepted meaning at the time they were written. This language also retains intact the courts' full control over the common law, but enforces a limitation on all interpretations of positive law. Finally, it assures that the scope of the language of laws cannot be expanded or contracted: laws mean what they say, no more, no less.

"Plain meaning" does not eliminate the need to interpret and apply broad and sometimes vague language. The task of determining the plain meaning of words is still a difficult one. There will still be a debate about what "freedom of speech" means, for example, and what constitutes its abridgement. Moreover, "plain meaning" is not mere literalism, or even strict constructionism. This is a textualist approach, like that favored by Justice Scalia and others. The plain meaning of words includes necessary implications beyond their literal definition. This meaning is further informed by context. Additionally, the courts will retain interstitial law-making power that is necessary to fill in the gaps when applying positive law to new situations. Nevertheless, plain meaning is not unbounded. It does not allow the Constitution and laws to mean whatever the Court thinks they ought to mean at any given time. Requiring adherence to the plain meaning of words will help impose a measure of discipline on the Court, and simultaneously encourage legislative action at the boundaries of existing legal language.

Opponents will undoubtedly lament that a "plain meaning" amendment will necessarily reverse all sorts of past decisions that went outside the language of the Constitution, but have positive effects. This argument is entirely outcome-based. It amounts to saying that the legitimacy of the judicial process is irrelevant, so long as we like its results. But an illegitimate process is a two-edged sword. It can just as easily produce bad results and should be eliminated as a matter of principle.

What is more, the language is prospective only. There is no danger of a great cataclysmic upheaval of the legal landscape because stare decisis will tend to hinder rapid reversal. Past precedents that fail the plain meaning test, whether generally accepted or still controversial, will not disappear overnight. Furthermore, the only past precedents that would necessarily disappear under a "plain meaning" approach would be those that were illegitimate in the first place. Where the plain meaning of language is narrower than previous interpretations, but the effects of those interpretations have been generally accepted by the people, the status quo ante can easily be restored through the legislative process. But where the Court has gone well beyond the actual language of the Constitution or laws, and the people generally disagree or have not made up their minds on the issue, it is appropriate that such precedents should die.

Whatever its form, current conditions suggest that a Constitutional amendment clarifying the power of the Court is now both appropriate and desirable. The form and language of such an amendment will certainly be the subject of much debate. But this is a debate that is long overdue.

Conclusion
It may seem shocking to suggest that we live under tyrannical rule, but judicial activism of any stripe is a species of tyranny. The Supreme CourtÕs power of constitutional interpretation is absolute, and the various abstract principles that the Court invokes to go outside its text were never agreed upon by the people, and therefore go outside the CourtÕs legal warrant. Whether the Court performs this exercise well or badly is irrelevant: the exercise itself is illegitimate.

Those who favor a continually expanding Constitution simply do not like, or do not trust, democracy. But the conversion of selected policy preferences into law through the courts, rather than through the legislative process, thwarts democracy, and has no apparent limit. The only effective solution is to amend the Constitution to more clearly define and limit the scope of federal judicial power, and codify sound rules for the interpretation of positive law.

1. See Bickel, Alexander, The Least Dangerous Branch, 239 (Bobbs-Merrill, 1962) ("the Court should declare as law only such principles as will - in time gain general assent. The Court is a leader of opinion, not a mere register of it.")

2. See Lerner, Max, America as a Civilization, 449 (Henry Holt, 1957).

3. See Funk & Wagnall's Standard Desk Dictionary, 734 (Harper & Row, 1984).

4. See The Federalist No. 78, at 522-23 (Alexander Hamilton) (Easton Press, 1979) ("The interpretation of the laws is the proper province of the courts. A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two . . . the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.").

5. Speaking at the Woodrow Wilson Center, March 23, 2005; quoted in Brennan, Philip V., A Living Constitution vs. an Enduring One, NewsMax, July 27, 2005.

6. The Federalist No. 81, at 541 (Alexander Hamilton) (Easton Press, 1979) (emphasis in original).

7. For a good general discussion of this topic, see Scalia, Antonin, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Princeton University Press 1997).