From the very beginning of this country, the Supreme Court has been an activist court. While it is true that Jefferson, Madison and Hamilton opposed
Marbury v. Madison(1803), on the grounds that they thought that the Constitution did not give the Supreme court jurisdiction over the Executive branch, they did not actively oppose it by refusing to obey its decision, as well they could have; Congress did not pass legislation modifying the Constitution in an effort to curtail the Court and, by the acquiescence of both the Executive and the Legislative branches, the idea that the Supreme Court was entitled to say what the law means became the modus operandi of American government. Today we accept that the Supreme Court is the superior branch, arbitrating what is Constitutional and what is not.
This was an instance where the framers of the Constitution may not have fully appreciated the consequences of their lack of specificity in enumerating the Court's powers, responsibilities and prerogatives. It has been argued that the "original intent" of the Framers was not to give the Court such a power, but in fact the Framers couldn't and didn't agree on just what the powers of the Court were supposed to be in the first place, hence this lack of specificity, leaving it for future generations to figure out. The Constitution may be seriously flawed in this respect, but
Marbury v. Madison is what we got, for better or worse.
If Conservatives as well as Liberals want to castigate the Court for being activist, they only have themselves to blame. In being remiss in enacting appropriate legislation, both at the state and federal level, and especially in their capitulation to the wishes of special interests, the judicial branch has stepped into the power vacuum and the result is a history of judicial activism that started almost immediately after the signing of the Constitution.
Judicial activism goes both ways. One of the more irritating actions of the bench is its constant use of the phrase (to the effect) "we find no right of [fill in the blank] in the Constitution." Well, of course they don't. The drafters specifically noted in Amendment IX that any rights not enumerated are reserved to the people or the states, later reinforced by the XIVth. These rights being self-evident, but because of specific complaints with the previous British government, it was felt necessary to spell out certain ones in I through V, the drafters felt no need to write them all down, and anyway, the Constitution is not a laundry list. In the language of the document itself, we can infer all kinds of rights, but Congress is specifically prohibited from "disparaging or denying" rights held by the people. Remember, the powers of the government are derived from the consent of the governed. The people have any and all rights that they want to claim, and inherent in the IX Amendment is the Framers' ackowlegment of the existence of rights that they just couldn't (seemingly) be bothered to list at that time.
Now, on the issue of same-sex marriage, Patrick Buchanan has argued eloquently that state legislatures have the right to define marriage as a legal relationship between a man and a woman solely. He quotes Martin Luther King, Jr. on the issue of "just law":
A just law is a man-made code that squares with the moral law or the
law of God. An unjust law is a code that is out of Harmony with the moral law.
To put it in the terms of St. Thomas Aquinas: An unjust law is a law that is
not rooted in eternal law and natural law.
Indeed. But what we have here is a fundamental disagreement on what is `moral.' There are many who do not recognize the `moral authority' of a St. Aquinas, a God or any gods, myself included. My take on a just and moral legal code is in its virtuousness. But this is probably too etheric for most judicial pundits. Thus, in this particular argument, we must fall back on an interpretation of what `natural law' might be, and here we find that personal rights are indeed man-made, subject only to the limits of harm-doing, and are therefore practically endless and are not subject to governmental interference or regulation. In fact, it is probably "immoral" to deny the rights of marriage to persons of any orientation whatsoever within the bounds of not doing physical harm. This last goes to a person's fundamental right to the "pursuit of happiness."
On the issue of "natural law" Justice Oliver Wendell Holmes famously said, "Certitude is not the same as certainty," and in the same vein, "Decide the case first and determine the principles afterwards."
In the context of abortion, however, there is no such thing in the Constitution as a separate "right to life" for a fetus, and none is needed for the reason stated above, in addition to the following: being not born, fetuses are physically a part of the body of a pregnant female, and under her sole authority (leaving aside the question of paternity). They are only arguably "persons" under the XIV Amendment, which Amendment was `originally intended' only to affect laws relating to former slaves. As a fetus cannot be considered separately from the pregnant female, the woman has primary interest. Is abortion moral? I don't know. Is it virtuous? That depends, and that's the rub.
In Roe V. Wade, the Supreme Court was presented with a situation in which the legislature had failed to define "persons" adequately, if at all, and that determination was left to the Court. The Court then made a determination that left no one happy when it found, after exhaustive investigation into the relevant medical and ethical issues, that a fetus did not rise to the standard of "personhood' until the end of the first trimester. It can still be reasonably argued that a fetus does not rise to the standard of "personhood" until after an actual "birth" (and probably well past adolescence, I might add).
Once again, the Court was placed in a situation which was a direct result of unforeseen consequences as the legislature failed to properly define its terminology, extent, or for that matter, its intent. Conservatives have no one to blame for this situation but themselves.
In the face of legislative failure to act responsibily, the Supreme Court has and will continue to make decisions that many people will not like. But this Republic was not founded to have people like it; it was founded to enable people to pursue happiness and liberty and to be as free of the chains of arbitrary authority as is practicable.
To my mind, then, an activist judiciary that enhances my rights and restricts government's ability to interfere with my behavior is virtuous and good, but one that defines my rights in terms of some heavenly ordered morality and imposes a theocratic moral code on me is bad.
Lastly, and most frightening for the future of this nation, the Congress has completely abandoned its obligation under the Constitution to declare war. The Executive has gobbled this prerogative up, thereby dangerously expanding its powers. Additionally, the President has assumed extra-Constitutional authority to unilaterally invade foreign countries, immunize corporations from prosecution a priori, willy-nilly declare American citizens "combatants, " detain prisoners of war indefinitely, suspended habeas corpus un-Constitutionally, invaded private citizen's homes on suspicion, and authorized torture and murder in contravention of the laws of civilized nations.
This is in no wise the fault of the Judiciary; it is entirely the fault of a series of do-nothing Congresses, beholden only to corporate interests and intent on their incumbency to the detriment of their obligations to the Constitution. I think it can be justifiably argued that the US Congress has been engaging in un-American activities since at least the Truman Administration and this goes for both conservatives and liberals. The American people have been systematically cheated out of their republic, to say nothing of any justice.
If we are to regain any semblance of the original intent of the founding Fathers, legislatures need to assert its prerogatives and reassume responsibilities in enacting just laws; to act as true representatives of all the people, and not as a pawn of the cabals of neoconservative advocates of world domination or the vocal minority of Rapture-preaching religionists or the consortiums of corporate pirates and their visions of globalization.