In a little more than a week, federal judges -- liberal activists both -- have ruled to stay or strike down state laws in defiance of the will of the people. Arizona's immigration law was first. Next was a ruling by a federal judge to strike down California's Proposition 8, which voters there passed to define marriage between a man and a woman.
From somewhere beyond the veil, Thomas Jefferson must be smiling wryly. Two hundred years ago, Mr. Jefferson saw the great potential for the judiciary to overstep and abuse its powers. As conceived by the Founders, the federal courts were chiefly designed to be a modest check upon the executive and legislative branches of government. And to adjudicate disputes among the states.
Mr. Jefferson wrote:
The great object of my fear is the federal judiciary. That body, like gravity, acting with noiseless & unalarming advance [is] gaining ground step by step... Let the eye of vigilance never be closed.[i]
As Jefferson foresaw, unelected jurists who enjoy lifetime tenure act today not to enforce the Constitution in accord with the Founders' intent, or to adjudicate laws and legislation consistent with lawmakers' intent, but chose to impose on the law interpretations that advance the interests of liberal ideological agendas. And to interfere in matters on the local and state levels that exceed federal courts' authority.
For years, the remedy to federal judicial activism merely has been calls to replace liberal judges. Replacing liberals with more conservative jurists is fine as it goes. But the long term remedy lies in limiting the power of the federal courts; in other words, explicitly returning federal courts to the modest role envisioned by the Founders.
Structural changes are needed to prevent ideologically motivated judges from destroying or imposing laws by fiat. That means amending the Constitution to create protections against judicial arbitrariness. That can be achieved by constricting federal courts' jurisdiction and putting limits on judicial review.
No easy feat, amending the Constitution, but worth striving for -- even if it takes many years to achieve. Let's not forget that the liberal doctrine of "creative" interpretation of the law didn't impact the nation overnight. The long march toward judicial activism began with the progressives in the early twentieth century and gained impetus under Franklin Roosevelt's tenure. Returning federal courts to their proper limited role is well worth a long march of its own.
[i] James F. Simon, What Kind of Nation, Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (New York, New York: Simon & Schuster, trade paperback edition, 2003) preface.