By Dave Kopel
Rocky Mountain News, August 11, 1997
As Congress, the legislative branch, becomes increasingly acquiescent to the Clinton agenda, many conservatives have shifted their attention to the judicial branch, and begun attacking "judicial activism.'' While conservatives are right to critique certain court decisions, the complaint about "judicial activism'' per se is fundamentally misguided. There is something very wrong with much of the judiciary, but "activism'' is hardly the problem.
The United States and Colorado Constitutions both require judicial activism. These documents create a system of limited government which is designed to keep government power under control, especially by limiting the abilities of majorities to oppress minorities. Unless the judiciary fulfills its duty of declaring unconstitutional all laws which violate the Constitution, then we have only a Soviet-style constitution: full of nice phrases, but meaningless in real life.
"It is emphatically the province of the judicial department to say what the law is,'' explained Chief Justice John Marshall in Marbury vs. Madison, the first case in which the Supreme Court declared an act of Congress to be unconstitutional. By the time of the 1876 Colorado Constitution, the principle of judicial review - the duty of the judicial branch not to enforce unconstitutional laws - was solidly established.
From 1876 all the way to the 1980s, the Colorado Supreme Court did perform its duty to enforce the state Constitution's right to arms. The court voided state and local laws which infringed gun rights, and narrowly construed other laws, to ensure that those laws would not interfere with defensive gun ownership.
But in 1994, the court abandoned judicial activism in defense of the right to arms. The court, upholding Denver's ban on cosmetically incorrect semiautomatic firearms, announced that it would uphold any gun law short of a complete prohibition on all guns, as long as the legislative body enacting a partial ban claimed that its actions were to benefit public safety.
The current court has been similarly derelict in its duty to enforce the constitutional requirement that private property may not be taken without due process. The court has stood idle while law enforcement agencies perpetrate the form of legalized piracy known as "forfeiture.''
There are a few areas - such as freedom of speech - for which the Colorado Supreme Court has been appropriately active, but these are far outnumbered by the many constitutional sections to which the court has refused to give any practical effect.
Yet the conservatives do have a point in their complaints about judicial activism. While the Colorado court is thoroughly inactive in enforcing the written text of our Colorado Constitution, the court has developed a penchant for inventing provisions which are not really in the state or federal constitutions.
Courts should be active on subjects about which the Constitution tells them to be active - such as property rights, free speech, the right to arms, and the separation of powers. And courts should not be active on subjects on which the Constitution is silent - such as assisted suicide, gay rights, or abortion.
Instead of criticizing "judicial activism,'' friends of limited government ought to focus their fire on judicial amending; that is, judges adding new rights (like assisted suicide) while subtracting textual rights (like the right to keep and bear arms). Amending the Constitution is a power that does not belong to the judicial branch; actively enforcing the existing Constitution is the most important duty of the judicial branch. Judicial amending is usurpation - the exercise of power which was never granted.
Attacking "judicial activism'' per se - rather than the misuse of judicial activism - former judge Robert Bork has begun calling for the legislative and executive branches to ignore - to nullify - judicial rulings with which they disagree.
Now there is a serious constitutional case to be made for nullification, but not as made by Bork. James Madison and Thomas Jefferson, in the Kentucky and Virginia Resolutions, argued that state legislatures could void the enforcement of the Alien and Sedition Acts within their boundaries. These hated acts, passed in 1798, made it a crime to criticize the president. Jefferson and Madison cogently argued that the Constitution never gave Congress authority to enact criminal legislation (except for a few specific crimes, such as treason), and that the acts violated the Bill of Rights.
The 18th and 19th century nullifiers stood on the principles of free speech, free trade, and limited government, and wanted to nullify oppressive legislative acts. Bork and his fellow 20th century nullificationists stand for just the opposite. They propose nullification of judicial decisions which protect minority rights, because they believe in unchecked majority rule.
The Independence Institute has recently begun a new project to monitor judicial usurpation. When judges do their duty to uphold every clause of the Constitution, we will vigorously support them. And when judges - such as the majority of the Colorado Supreme Court - usurp authority by adding and subtracting from the Constitution, we will make sure that the public knows what is wrong.