March 15, 2004

Conservatives have long decried "activist judges" and "judicial activism." Those terms have a specific meaning, referring to courts that do not simply interpret the law but instead change the meaning of the law under the guise of interpretation.

Writing the law is the constitutional role of the legislative branch, which is elected by and accountable to the people. The role of the judiciary is to interpret, which The American Heritage Dictionary defines as "to explain the meaning of."

To preserve the rule of law, courts must interpret statutory or constitutional language according to its literal meaning or, if its wording isn't clear, then according to the intent of the governing body which adopted the law. Intent is determined by reviewing what the law's proponents said about it at the time it was considered by the legislature or the voters.

Under the doctrine of original intent, ambiguities in law should be interpreted within the parameters of that law. Courts may confine the law but may not extend it into areas not contemplated by the governing body.

By contrast, the law may not govern every possible situation, nor should it in a system of limited government and individual liberty. When that happens, the law is "silent" on a particular matter, and no ambiguity exists to be defined. When statute is silent, no prohibition against that particular conduct exists. When the constitution is silent, the people through their state legislatures have discretion to do as governing majorities please.

Increasingly, however, courts are loathe to concede that any matter is beyond their bounds, so they treat silence as if it were ambiguity and claim to be compelled to "interpret" by applying the law in a way never contemplated by the legislature or the people. This is the essence of judicial activism.

Until recently, liberals refused to acknowledge that judicial activism existed. But when the U.S. Supreme Court intervened in Bush v. Gore to halt the Florida recount, liberals suddenly decried that decision as judicial activism.

However, Bush v. Gore wasn't judicial activism for a very simple reason: the U.S. Supreme Court upheld the plain language of Florida law. Moreover, the court didn't strike down an act of the legislature; it properly overturned an incorrect ruling by a lower court.

Because the case moved so fast, many people forget that Florida state law stipulated how to conduct a recount of ballots, but the Florida Supreme Court "interpreted" the law by replacing the legislature's instructions with new instructions written by the court. Replacing the policy of the democratically-elected legislature with the policy of an unelected court is precisely judicial activism.

When the U.S. Supreme Court struck down that decision, seven of nine justices agreed that the Florida court was wrong. Liberals ignore that fact and remember only that just five justices agreed on how to correct the Florida decision.

To liberals, judicial activism means "any decision we don't like." That includes decisions like the U.S. Supreme Court's ruling on the Gun Free School Zone Act and the Violence Against Women Act. Both were declared unconstitutional not because the court disapproved of the law's objectives but because Congress, whose authority to legislate is limited by the Tenth Amendment, had no authorization to legislate in areas which the Constitution "reserves to the states."

Just as the court acts properly when it strikes down laws which unconstitutionally infringe on freedom of speech or religion or the right to bear arms, the court acts properly when it confines Congress to those powers authorized by the Constitution. State constitutions operate in a slightly different manner in that they typically authorize the legislature to pass laws as it sees fit, except where specifically limited.

This article was originally published on the website of the Colrado Senate, and is republished here with the kind permission of the author.

Mark Hillman (R-Burlington) served as the Colorado Senate Majority Leader. His e-mail address is mail@markhillman.com