The charge of "judicial activism" typically condemns proper activity on the part of judges along with improper activity. It has become dangerously commonplace to equate a judge's support for overturning a law with pernicious activism. Prevailing wisdom holds that we can identify "activists" simply by counting up the number of times a judge rules against existing laws or government practices. Notice that by that logic, the only way for a judge to avoid overstepping his authority is to engage in no activity--to simply rubberstamp whatever the legislature and other agencies of government serve up. What, by this reasoning, is the point of having a Supreme Court? Some laws should be struck down. Because the United States is a constitutional republic, we are all bound--private citizens and government alike--to abide by the Constitution. It is precisely the role of the judiciary to strike down laws and prohibit government actions that fail to do so. Judges who so rule are acting responsibly and fulfilling their function.
With this important proviso, often ignored by Conservatives:
In doing their job, judges must be mindful of the 9th Amendment. The Constitution does not provide an exhaustive catalog of every right that citizens possess. The 9th Amendment explicitly instructs us that those rights not named in the Constitution are retained by the people. It is thereby laying down a principle to guide Constitutional interpretation. Accordingly, judges must apply the law in a way that respects all the rights of the citizens, unenumerated as well as enumerated. It is no more legitimate to subtract from the Constitution, by ignoring this provision, than to arbitrarily add to it.
Copyright © 2005 Ayn Rand® Institute. All rights reserved.
I admire Miss Smith and encourage everyone to read her writings.
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