It's Bad to Be the King
by Andrew Smith, Democratic Candidate, Iowa House District 40
This
summer, Congressman Steve King of Iowa's fifth district has been on a
crusade against “activist judges,” who he claims “legislate from the
bench.” According to Congressman King, “policymaking decisions…should
not be made by lifetime-appointed judges, but by elected lawmakers who
are accountable to the public.” In April of this year, King
offended U.S. District Judge Richard Kopf when he said that “activist
judges” were using their positions of power to impose their personal
views on the rest of society. King also commented that unelected
judges were amending the U.S. Constitution by striking down acts of
Congress as unconstitutional. Unfortunately, most people (including
King) who use the term “judicial activist” do not provide a workable
definition of what it means. In my experience, it typically means
judicial opinions rendered by judges the speaker disagrees with.
However,
it is not “judicial activism” or unconstitutional for a judge to use
his or her discretion to strike down as unconstitutional acts of the
legislative branch. This power of judicial review was found
constitutional in the famous case of Marbury v. Madison, which happens
to be the foundation of constitutional law. Perhaps King should
consider reading it. Certainly, King would be hard pressed to find any
serious legal scholar today who believes courts should uphold all
actions of the legislative branch, no matter how draconian. I would
also be frightened of anyone who would advocate lessening, weaking, or
removing some of our current judicial checks on legislative power. But
that appears to be exactly what Steve King wants to do.
In
reality, “judicial activism” can only really occur when a decision
clearly, without a shadow of a doubt, is in conflict with the text of
the United States Constitution; either because a judge is reading
something into the Constitution that does not exist or is refusing to
interpret something that clearly does exist. But in practice, there are
many vague and open-ended clauses in the United States Constitution
that are anything but clear, and as a result, reasonable minds can and
do often differ on their original meaning and intent. As a result, true
“judicial activism” is extremely rare.
Ironically,
most true “judicial activism” today in my opinion is done by the
conservative judges Steve King often applauds (Judge Roy Moore, for
example). This is because conservative judges repeatedly ignore and
disregard the United States Constitution where it seems vague and open
to interpretation, despite the fact that these clauses are clearly in
the document. In their opinion, failing to ignore these open-ended
clauses would give judges too much power and discretion, and would make
the Constitution a “living document,” something conservatives detest.
Thus conservative judges often ignore the Ninth Amendment (“The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people”) and the
Privileges or Immunities Clause of the 14th Amendment (“No state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States”) without justification.
Isn't reading something out of the Constitution just as much activism
as reading something into it, Mr. King?
Representative
King, you can disagree with the meaning of certain clauses in the
United States Constitution, but don't insult our distinguished judges
who use their constitutional discretion to “judge” what they mean by
calling them names. Simply attack the judge’s legal interpretation and
give us evidence and reasoning why their decision is inconsistent with
clearly-established precedent and history. And if you believe that an
interpretation made by a judge is clearly wrong and can convince enough
of “the people” that your interpretation of a clause is right, then do
what your conservative friend Justice Scalia often suggests and attempt
to amend the Constitution to clarify.
However,
I believe that in the end you have picked the wrong enemy, Mr. King.
Federal judges are not the ones imposing their unconstitutional actions
on the citizenry. They are often the ones stopping Congress from
imposing their unconstitutional actions on us.
To learn more about Andrew Smith or to contribute to his campaign, go here.
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