March 31, 1997

Since the 1930s, judges of a more liberal persuasion, began to develop the modern doctrine of judicial review. What this means is that federal judges can invalidate any state or federal law or policy passed by the legislature or the people through the initiative process, inconsistent with the United States Constitution.

As modern liberal judges exceed their constitutional prerogative to interpret law and instead interpolate their personal political views and prejudices into the law as Constitutional, the least democratic branch of government becomes its most powerful.

This political doctrine of judicial review gives unelected federal judges awesome power to alter public policy to conform to a specific political agenda and completely usurp the democratic process. In order to return the proper role of the federal government, the federal judiciary must be brought back under the scope of the constitution as presented by the Framers.

James Madison wrote in The Federalist Papers that to combine judicial power with executive and legislative authority was "the very definition of tyranny." As modern judges read into the law their personal views, circumventing the legislative branch, judicial activism replaces what the Framers recognized, the necessity of judicial restraint, a dangerous and precarious precedent for the freedom of the people.

An unelected judiciary was a concern to Thomas Jefferson because he believed allowing only unelected judiciary to interpret the Constitution would lead to judicial supremacy. Jefferson wrote: "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy."

As the federal judiciary has strayed far beyond its proper role and functions, Abraham Lincoln warned the American people about unelected judges being the final arbitrators to decide the important issues of the day, when he said in his First Inaugural Address: "The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court...the people will cease to be their own ruler, having to that extent, practically resigned their government into the hands of that eminent tribunal."

From my perspective, President Reagan was right on point about judicial activism when he noted: "The Founding Fathers were clear on this issue. For them, the questions involved in judicial restraint was not - as it is not - will we have liberal courts or conservative courts? They know that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have a government by the people?"

Ray Haynes was first elected to the California State Assembly in 1992. He served in the California State Senate from 1994 to 2002, including as Senate Republican Whip.