M⁠i⁠sd⁠i⁠agnos⁠i⁠s: Jud⁠i⁠c⁠i⁠al Ac⁠t⁠⁠i⁠v⁠i⁠sm

By: The James Madison Institute / February 3, 2011

The James Madison Institute


February 3, 2011

 By Bob Sanchez, JMI Policy Director
As soon as the press reported U.S. District Judge Roger Vinson’s ruling that “Obamacare” was unconstitutional, liberals began attacking the decision as “judicial activism.” Why? Because the judge – albeit reluctantly — had overturned an act of Congress.By that simplistic definition of judicial activism, however, you’d expect the political left to raise the same hue and cry if a judge somehow overturned a law authorizing the government to confiscate all private property and repeal the Bill of Rights.In reality, upholding the U.S. Constitution’s limits on governmental authority is a proper exercise of judicial authority. Indeed, the doctrine of judicial review has been recognized ever since the landmark case of Marbury v. Madison in 1803. And Judge Vinson’s ruling is far from an abuse of that authority.True, it’s not that abuses never occur. In fact, real-life examples of judicial activism abound. For instance, activist judges in recent years have upended centuries of settled law by redefining marriage. They have based a capital punishment ruling on “evolving international standards” rather than the U.S. Constitution.Equally troubling, they have read into the Constitution meanings that are not found in the wording and are plainly not what the Founders intended. Justice Harry Blackmun’s majority opinion in Roe v. Wade is but one example. Under the “penumbra” of an implicit “right of privacy,” he discovered that states may not prohibit abortion — except after an arbitrary court-defined point.Not only have activist judges based decisions on words and intent that are not present in the Constitution, but they’ve also blithely ignored words and intent that are present. Nowhere was that more evident than in Kelo v. City of New London, which blatantly ignored the Fifth Amendment’s words, “nor shall private property be taken for public use without just compensation.” [emphasis added]In that notorious case, a narrow majority of the U.S. Supreme Court upheld government’s use of its power of eminent domain to seize private property — a home – not for a public purpose such as building a road, but to turn it over to another private party in the hope of bolstering the city’s property tax revenue. Since when does fattening the coffers of a local government amount to a “public use” of property?Granted, in life, some things — like beauty – are truly “in the eye of the beholder.” However, the liberals’ complaint that Judge Vinson’s ruling is an example of judicial activism is more properly described as “projection” — a psychological condition in which you project onto others your own attitudes, problems … and sins.