NCPA - National Center for Policy Analysis

Identifying Judicial Activism

October 31, 2002

When writing the Constitution, the Founding Fathers allowed for the separation of the judicial function from the political branches (the elected branches), thus giving judges the power to decide cases without undue influence from changing public attitudes. In this way, the judges are to adhere to what the law says rather than what the popular passions of the moment may indicate. In spite of this, state and federal judges must guard against judicial activism -- substituting their judgment of what the law ought to be.

Basically, there are three rules of thumb for recognizing judicial activism.

  • First, a judge is usurping legislative or executive power when he or she is micromanaging or otherwise trying to run a public institution, especially for a lengthy period of time.
  • Secondly, a judge is always or almost always usurping legislative power when he or she orders a tax increase to pay for implementing judicial decisions.
  • Thirdly, judges who enforce explicit clauses in the Constitution according to their common or original meaning are less likely to be usurping political power than judges who find "new rights" that are supposedly implicit in "emanations from penumbras."

When legislatures stand up for what is their responsibility and their authority under the state constitution and under the federal Constitution, it is the best way in which we can preserve a democratic republic and continue the Founders' idea of government by the people, legal experts say.

Source: Edwin Meese, "The Role of the Judiciary in a Democratic Republic," The Journal of the James Madison Institute, Fall 2001.


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