This article — in a sense mis-named — is the second in a two-part series. The first article, which appeared on this blog August 29, 2004, provided a look at the Supreme Court ruling in the case of Marbury v. Madison, 5 U.S. 137 (1803). This is the case that many law school professors who have not read the Federalist Papers will tell you “established” the doctrine of Judicial Review in American jurisprudence.

By its discussion of the power and duties of the judiciary system, that article began to lay the groundwork for talking about “the problem of activist judges.” This article enhances our understanding of judges’ duties with a look at The Federalist Papers and explains why, on the one hand, Bush is right about some things concerning what the proper functioning of judiciary means to “the will of the people,” but why the tack that he’s chosen is dead wrong.

The Irony of Marbury

Remember that in Marbury, Madison was the Secretary of State to whom the Supreme Court had issued an order to show cause. (For details on Marbury, see the first article in this series.)

An order to show cause is, essentially, a call from the Court to all parties involved to come in and discuss whether or not the Court should consider doing what it is that the complaining party — the person who brought their complaint to the Court in the first place — wants to do. In this case, that meant that Madison was being requested to come in to discuss (the legal art term here would be “argue”) the case and whether or not the Court should consider issuing a mandamus; the mandamus would be another order from the Court, this one ordering Madison to give the commission to Marbury, as Marbury requested.

When an order to show cause is issued, there are a variety of potential responses. The person receiving the order — in this case Madison — can show up in Court to say that the Court does not have jurisdiction to hear the case. Thus, Madison could have made an appearance in the Court and he could have given the constitutional reasons why he believed the Supreme Court would be overstepping its authority to hear the case. Another possibility would be to show up in Court and argue the case on its merits; that is, explain why the complaining party’s complaint should be dismissed and nothing should be done for them. Still another option would be to ignore the Court altogether. This is the course chosen by Madison, presumably with the concurrence of then-President Thomas Jefferson.

In the prior article, I noted that Madison “thumbed his nose” at the Court. But it’s perhaps more accurate to state that Madison, and Jefferson — two of the “Founding Fathers” of our system of government, which includes our courts — apparently felt that the Supreme Court of the United States was of so little consequence that they did not even take the trouble to thumb their noses; they simply ignored it. The irony of this move is wrenching. It was, after all, Madison who had proposed to the Constitutional Convention that the Supreme Court should have the authority to consider and veto any law posed by Congress before it was put in effect! (Redish and Sherry, Federal Courts: Cases, Comments and Questions, 5th Ed. (2004??? note to self: check date).) The Constitutional Convention, of course, did not implement this suggestion; today the Court has the power to review laws and acts for constitutionality during any “case and controversy,” but not to review every law passed by Congress before it is enacted.

The Federalist Papers

The Federalist Papers were originally published as a series of articles which “made their appearance in the gazettes,” or newspapers, of New York. (The Federalist Papers, at p. 25 (Clinton Rossiter, ed., 1961).) The series was written under the pen name of “Publius”; the actual authorial duties were shared by Alexander Hamilton, James Madison and John Jay. The purpose of the series was to confront arguments against the adoption of the Constitution of the United States, so that the people could see that the Constitution really was a phenomenal document intended to establish a system of government to protect their interests. As the opening salvo of Federalist No. 1 notes,

Happy will it be if our choice [to adopt the Constitution] should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions, and prejudices little favorable to the discovery of truth. (The Federalist No. 1, at pp. 27-28 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

To those of us who have lived our entire lives in a United States of America governed, until recently, under the strict observation of the Constitution (and most of us even now do not realize how unblinkingly our current government has damaged us in this regard), the idea of a nation without this Constitution is unfathomable. Yet in the period leading up to ratification in 1789, “Americans” had long lived without it. Then, as now, there were “special interests” which had become entrenched; they were used to the way things were. And just as Orwellian George talks incessantly about protecting freedom and democracy while signing bills and, increasingly, Executive Orders that allow him to bypass congressional oversight, so, too, in those days was it the case that,

Among the most formibidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. (The Federalist No. 1, at p. 28 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

Now, as much as that may sound like a description of the modern-day Republican Party, I don’t want you to think that I’m using this discussion to show what an evil man George Bush is. He may be evil. It is equally possible that he is simply misguided. Even Hamilton recognized that sometimes good motives lead to bad results:

Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least if not respectable — the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. (The Federalist No. 1, at p. 28 (Alexander Hamilton) (Clinton Rossiter, ed., 1961); emphasis in the original.)

This is a reason, incidentally, why we should try to maintain discussions free of ad hominem attacks upon one another. As Hamilton put it, “This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so thoroughly persuaded of their being in the right in any controversy.” (The Federalist No. 1, at p. 28 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

So the Federalist Papers, then, were written by men who were involved in the development and writing of the Constitution of the United States, for the purpose of explaining the Constitution to the people of the colonies what the Constitution was about and why they should ratify it.

Federalist Papers No. 78 through No. 83 specifically focus upon the operation of the Judiciary Branch. As noted in my prior article, the experience of the colonial times had been that King George III abused the system of justice by removing judges who made decisions he didn’t like and/or cutting their pay. Federalist Paper No. 78 therefore discusses the rule that appoints federal judges to terms limited only by “good behavior” and their life. (A complete discussion of “good behavior” is beyond the scope of this article; suffice it to say that this is an ethical, and not a political, question.) No. 79 discusses the rule that says their paychecks cannot be reduced. (There’s even an interesting comment showing that they took into consideration the impact of inflation, recognizing a procedure for occasional increases in salary.) Federalist Papers 80 and 81 discuss the powers of the federal judiciary as laid out in Article III, particularly § 2, of the Constitution; no. 82 explains the relationship between the federal and state systems, including a discussion of concurrent jurisdiction; while no. 83 — one of the longer articles in this section — discusses the operation of the Supreme Court in relation to the issue of trial by jury.

Federalist No. 78 points out that life tenure for judges is necessary because, keeping in mind the abuses of King George III,

In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. [Rick’s note: That would be Congress, representing the will of the People.] And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of laws. (The Federalist No. 78, at p. 464 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

In fact, “the complete independence of the courts of justice is peculiarly essential in a limited Constitution.” (The Federalist No. 78, at p. 465 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).) Today, many people mistakenly believe the purpose of the Constitution is to tell us — the citizens of the United States — what freedoms we have. Under this view, if the Constitution says you have a right, you have it; if the Constitution does not discuss a right, then that right does not exist — unless “activist judges,” contrary to the will of the governing authorities (and, often, as the quote above shows, the majority) “create” the right. The reality is that all rights belong to individuals by default. Via the Constitution, those who founded this country gave to the government certain specific, limited rights that were necessary to make it possible for the government to function. And to function for what? To protect those rights which we had not given up! The Constitution, rather than limiting the citizens to a certain set of rights, was written to limit the government to a certain set of rights; all others were kept by the people.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (U.S. Const., Art. IX-X.)

And because there is a tendency of governments, and of large groups of people, to try to force their will, their view of the proper way to live, upon others, the authors of the Constitution — and all the people who voted to ratify that Constitution — recognized that,

Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. (The Federalist No. 78, at p. 465 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

That this is how things would operate — that the judiciary branch of government would be the final arbiter, holding a kind of “trump card,” if you will, over the acts of others regarding constitutional questions — is not something judges invented to give themselves more power. When Chief Justice Marshall, writing in Marbury, said, “It is emphatically the province and duty of the judicial department to say what the law is,” he was virtually quoting Hamilton’s explanation of the place of the judiciary under the Constitution he helped to write. (See The Federalist No. 78, at p. 466 (Alexander Hamilton) (Clinton Rossiter, ed., 1961) [“The interpretation of the laws is the proper and peculiar province of the courts”].) It was “by plan of the convention” that there exists “an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union,” e.g., the Constitution. (The Federalist No. 80, at p. 474 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).) Legislatures, driven by the political whims of the day, may pass laws — even in colonial times, they did pass such laws — that, contrary to the Constitution, impinged rights that the people had not given up to the government.

[T]hough the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes that could not be foreseen nor specifically provided against. (The Federalist No. 80, at p. 476 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

“The spirit which produced them” is evident even today in the words of President George Bush, railing against “activist judges.”

The Problem of “Activist” Judges

What does the President — and what do those who agree with him — mean when complaining about “activist” judges?

They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars. . . . Justice Antonin Scalia would say it better, of course. He’d make reference to the framers and toss in words like kulturkampf. Dahlia Lithwick, “Activist, Schmactivist,” The New York Times (online) ¶ 1-2 (August 15, 2004), at http://www.nytimes.com/2004/08/15/opinion/15lithwick.html?ex=1250308800&en=807c5abd1404f42d&ei=5090&partner=rssuserland

They “invent” new rights. Saying that “they” “invent” new rights only makes sense if you believe that the people don’t have any rights that the Constitution doesn’t already give them. But as we noted above, the Constitution doesn’t give people rights; they already have whatever rights were not expressly and deliberately given to someone else (e.g., the government). If there is the recognition today of a right that no one thought of before, that right automatically belongs to the people; since it was not recognized before, it could not have been expressly given to the the government by the people. And, as stated by the last two of those Amendments known as “The Bill of Rights” — upon which the people had originally insisted on to keep the government from getting confused about what the government could not do — any rights not mentioned in the Constitution belong to the people, automatically. The fact that some of the people’s rights are detailed in the Constitution is not to be used to show that other rights, not mentioned in the Constitution, are denied. (Articles In Addition To, And Amendment Of, The Constitution Of The United States Of America, Proposed By Congress, and Ratified By The Legislatures Of The Several States, Pursuant To The Fifth Article Of The Original Constitution, Article IX.) Unless the Constitution specifically gave those rights to the federal or state governments, all rights — even those “newly discovered” — belong to the people. (U.S. Const. amend. X.)

Well, if a right — even a right that we didn’t know existed before — hasn’t been given directly to the government, then what can people like our President mean when they complain about judges who “let” people have those rights? After all, even if it was true that someone “invented” a new right, according to our Constitution, that right automatically belongs to the people. Proof of the truth of this is found in the discussion of the absence of a “Bill of Rights” in the Constitution originally drafted by the Constitutional Convention. Hamilton pointed out that a Bill of Rights was only necessary where an all-powerful ruler existed; the Bill of Rights would be a document where that ruler stipulated, or agreed, that he would not do certain things to the people. The ruler would allow the people to have certain rights that even he — so he promised — would not violate. But as Hamilton noted,

They [guarantees of people’s rights] have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. (The Federalist No. 84, at p. 512 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

In the end, a compromise was made for those people who were so afraid of governments that they would not vote to ratify the Constitution without specific, express protection of certain rights. That’s why the first ten Amendments to the Constitution are called “Articles In Addition To, And Amendment Of, The Constitution Of The United States Of America, Proposed By Congress, and Ratified By The Legislatures Of The Several States, Pursuant To The Fifth Article Of The Original Constitution.” And, as noted, the ninth and tenth of that group of Amendments are intended to make sure no one is ever confused: It is the government which is limited by the Constitution; not the people.

When you boil it down, what those who complain about activist judges really mean is that a court has ruled in some way contrary to what they would like to see. If a court explains that the Constitution protects a woman’s right to choose an abortion because that Constitution does not give the government complete control over her body, it’s those silly activist judges who can’t see that there is a higher law than the Constitution: G-d’s law. And whereas “it is emphatically the province and duty of the judicial department to say what the law is[,]” it is emphatically the province and duty of George Bush and other fundamentalist Christians to say what G-d’s Will is. If the courts do begin to realize that African-Americans are entitled to equal protection under the law — well, okay, maybe (after a huge fight), fundamentalist Christians can grudgingly learn to live with what those uppity activist judges have done. (But do nothing more than substitute “homosexuals” for “African-Americans” in that last sentence and watch the sparks fly!)

The fact is that, as Marbury noted “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” (Marbury, supra, 5 U.S. 137 at p. 177.) And there are going to be times when expounding and interpreting the rules results in, say, the election of a fundamentalist Christian President who will begin to dismantle the Constitution, and times when expounding and interpreting the rules will result in decisions that the Great Dismantler does not appreciate. In the end, “activitism” is in the eye of the beholder. Whether or not you think a particular ruling is indicative of an “activist judge” depends on whose ox is being Gore-d.

But that’s one reason why the Framers, in their wisdom, insulated the Judiciary from the Executive (and, for the most part, from the People). Just as under King George III, so, too, under King George Bush “there is no liberty if the power of judging be not separated from the legislative and executive powers.” (The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter, ed., 1961), quoting Montesquieu, Spirit of Laws, Vol. I, p. 181.)

Do the moral — or political — views of judges color their interpretation of the law and of the Constitution? No doubt they sometimes do. After all, who we are and what we believe has a tendency to color our interpretation of just about everything in life. This is one reason judges write “opinions”; these are essentially arguments that support their rulings. When the opinion of the Supreme Court of the United States makes it clear that judges interpret the existing Constitution in a way that rubs enough people the wrong way, there’s a fix for that built right into the Constitution itself. And here’s the moment you’ve all been waiting for: George Bush is right when he says that the only way to deal with this “problem” is by constitutional Amendment.

[It is] the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness. (The Federalist No. 78, at p. 468 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

That this is incredibly difficult is beside the point — it is beyond the scope of this article and perhaps I can discuss it in another one some other day — it’s supposed to be hard. If it were not, then every whim of the majority would constantly impact upon the rights of the minority. Any time someone said, “I have a right to do this” and the mob disagreed, the Constitution would be re-adjusted. Such a Constitution would be utterly useless. Put another way,

[Y]et it is not to be inferred from this principle [the one quoted above the last paragraph] that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body. (The Federalist No. 78, at p. 468 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

Changes of this nature are not to be taken lightly. And judges, like the rest of the people, are bound by any existing constitutional principles “[u]ntil the people have, by some solemn and authoritative act, annulled or changed the established form.” (The Federalist No. 78, at p. 468 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

Complaining about “activist judges,” though, shows a complete lack of understanding of our Constitution and the Judiciary it created. Such complaints serve no greater purpose than to undermine the rule of law and the respect we should all give to it. It makes for nice sound bites and it does a good job of inflaming the people. But when judges stand firm on the Constitution,

Consider men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. (The Federalist No. 78, at p. 469 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).)

Think about it.