Judicial Activism

Frank Pavone, Rev.
National Director/ Priests for Life
July 3, 2001

In our system of government, courts do not make law. Rather, people do, through their elected representatives. This is what constitutes our freedom and our self–governance. This is also the reason why elections are so important, and why participation in elections is an integral part of preserving and exercising our freedom. When we participate in elections, questions of ideology matter precisely because we are choosing the people who, in our name, will make the laws on a wide range of issues. As long as the people make the laws, the people are free. The courts, meanwhile, exist to apply the laws to cases that come before them.

But what happens when the people no longer make the laws? What happens when judges take this power to themselves, and invent new laws that are not in the Constitution — such as the "right to abortion"?

What happens then is that the people are no longer free. In such a case, as Thomas L. Jipping of the Free Congress Foundation recently pointed out, “We can have all the elections we want, our legislators can pass all the statutes they want, we can amend the Constitution a thousand times, and none of it will mean anything because judges have taken the power to make law away from us.”

We are at a time when all of this is more important than ever. The President has the responsibility, under the Constitution, to make nominations of judges, and the US Senate has the responsibility to vote on their confirmation. In most cases, these judges serve for life, and have the final word on cases that touch on the most fundamental moral questions of our lives.

A key duty, therefore, is to contact our Senators, and ask them to confirm only Justices who will strictly uphold the Constitution as already written. The Constitution is not an evolving document with a new meaning for every generation. It is, instead, a foundational document which is meant to insure a stable government, and the protection of the rights of the people under a system of carefully balanced powers.

Yet we are currently off balance as judges around the country write their own laws from the bench. This should be the key point in the public discussion about the nomination and confirmation of judges. What matters more than where the nominee stands on particular ideologies is how the nominee sees his/her role as a judge. Is it to create new laws, or to apply the laws that the people have created? If the latter, then the judge's personal ideologies won't matter.

If we press this argument for what it is, namely, whether the people will continue to be their own rulers or not, we will win a broad coalition of support even from people who do not share our position on specific issues, but who are perceptive enough to realize that when people disagree on issues, the people themselves should resolve the disagreements through the legislative process, rather than be subject to the views of unelected judges.