Emory Undergraduate Journal of Law & Society

How can a document written in 1787 with only 27 amendments possibly represent the will of the general public? With the partisan tides of America constantly changing and the population rapidly growing, balancing the ideals of the original framework of the nation with those of the American people is growing increasingly difficult, leading to increased support for judicial activism. While in principle this judicial framework is beneficial and well-intentioned, the realities could erode our judicial system and devalue our founding document. The priority of U.S. citizens and justices should be to amend the Constitution, to make it easier to amend the Constitution–not to accept its flawed amendment system and, in doing so, create judicial leeway that diminishes the strength and value of the document and opens the doors to corruption. 

Judicial activism is often employed to further the concept of the living Constitution, a framework to interpret the U.S. Constitution with respect to modern-day America and its needs. This interpretation recognizes that the Constitution can be amended but believes that the scrupulous amendment process makes it nearly impossible. Thus, it is necessary to view it as a general framework with which to guide the nation. It is “living” in that it can constantly be amended through interpretation, guided by modern-day American needs and a focus on the general principles of the document.

Firstly, this misunderstands the role of the judiciary by granting it legislative powers. To believe in a living constitution and judicial activism would be to rewrite the responsibilities of the judicial branch into something they are not. It is Congress that maintains “all legislative Powers herein,” [1] while judicial power extends over “all Cases, in Law and Equity,” [2] arising under the Constitution. The types of power described here are neither the same nor interchangeable under the current version of the “supreme Law of the Land.” [3] While the outcomes of various Supreme Court cases may not be desirable to the public, this is to no fault or responsibility of the Court. The Federal Judiciary’s role is not to make decisions based on what would be personally or publicly desired but on what is objectively true as written in the Constitution. To make decisions outside of the purview of the document without respect to the proper amendment process would be to rewrite it and, even more, to devalue it. What is the point in having such a document if it is not to be adhered to? In this way, utilizing judicial activism is arguably unconstitutional and a misguided approach to the true role and responsibility of the Supreme Court. It also opens doors for severely detrimental decisions.

If judges feel that they have the leeway to stray far away from the text of the founding document, the guiding document of our Nation, what is to say this can’t be used to regress our nation? Just as Roe v. Wade, a case often cited as judicial activism for its loose interpretation of the Fourth Amendment’s right to privacy, employs judicial activism, so too does a case like Dred Scott v. Sandford. The same judicial outlook that protected female bodily autonomy and abortion access was used to determine that enslaved people were not citizens and thus undeserving of protection by the federal government. Just as judicial activism can be used in the pursuit of justice, it can also be employed for purposes that are unjust.  Thus, being strictly bound to the text of the document and putting greater emphasis on amending it where needed is the best way to avoid corruption and maintain the strength of the document. 

It would be naïve to act as though practicing law does not inherently involve some interpretation–as the law is not always clear–but what has grown common is the approach of knowingly straying away from the text’s meaning so as to legislate rather than judicate. In U.S. v Lopez, it was very clear that enacting the Gun-Free School Zones Act of 1990 was not done with the intention or necessity to regulate interstate commerce but instead with the intent of regulating the possession of firearms. Most would agree that this is a noble and necessary goal, particularly in school zones, but that doesn’t alter that its enactment was carried out unconstitutionally. Nearly anything the federal government wishes to regulate can, in some way or another, be tied to the economy; thus, allowing for the commerce clause to be used loosely would give nearly unconstrained legislative powers to the federal government. This is dangerous as it assumes that the government can be trusted only to do good, and that such a precedent wouldn’t result in laws being passed that, perhaps, demands gun presence in school zones. Furthermore, loose interpretation just avoids the root problem–that parts of the text of the founding document are not conducive to meeting the needs and wants of modern-day America and that making imperative changes are far too difficult. 

This is not to advocate for a constitution that is very easy to amend. There are dangers in that, too. However, the current methods for even proposing an amendment, a proposal by two-thirds of both the House and the Senate or the legislatures of two-thirds of the states, are in no way feasible. A fear of amending the Constitution alongside a hopeless sense of impossibility in its practicality has resulted in justices and legislators unconstitutionally exerting power they do not have. Finding a balance between making a constitution that is easier to amend but not too easy will not be simple, but it nonetheless should be strived for so as to better execute the principle of separation of powers. 

Abuses of power are far from uncommon and manifest in far worse ways than judicial activism. Nonetheless, maintaining the strength of and reinstalling trust in the founding document is vital to avoid the abuses of power and corruption that can come from abandoning the value of separation of powers. It is unacceptable to cave to the flaws of the Constitution and go against the needs of the people and outside of the purviews of judicial power. A constitutional revisit is necessary.

References

[1] United States Constitution, Article I Section 1

[2] United States Constitution, Article III Section 2

[3] United States Constitution, Article VI Section 2

[4] Roe v. Wade, 410 U.S. 113 (1973)

[5] Dred Scott v. Sandford, 60 U.S. 393 (1856)

[6] U.S. v Lopez 514 U.S. 549 (1995)