What Is An Activist Judge?
By Chuck Hyde, Editor of StandBesideHer.com
The notion of an activist judge is something that is mentioned a lot in the media but is never defined. The more entertaining argument is whether there is even such an animal. The reality of the discussion over activists judges is that an activist judge is one that issues a ruling that you disagree with.
We first have to clarify what judges do. The separation of powers in the US is between the Executive, Legislative, and Judicial branches. For the purposes of this discussion, we will distinguish between the Legislative and Judicial branches. In simplistic terms, the Legislative branch makes laws and the Judicial branch interprets and clarifies the laws. The Judiciary uses a couple of means to interpret laws, the US constitution (or state constitution for state judges) and case law. Case law is the body of decisions by other judges throughout history.
The interpretation is where the disputes come in. There are two schools of thought for the interpretation of the constitution, “strict constructionism” versus “living document”.
Under the notion of strict constructionism the US Constitution is carved in stone and judges should follow the original intent of the framers. In other words, they aren’t supposed to interpret a law as much as determine if the law follows the constitution. When a constructionist judge is presented with a new law they will decide if it follows the constitution literally and rule on the constitutionality based on this criteria.
The theory of the living document holds the constitution as a guideline and believes that the framers wanted the interpretation to be open ended and change as conditions change in the US. Under this idea, judges will look at a new law and determine if it fits the intent of the constitution in relation to today’s standards.
The interesting thing about this argument is that in a lot of ways, the US Constitution is somewhat vague. There is a strong argument to be made that the lack of specificity is what makes the US Constitution such an incredible document and has helped it stay strong after 200+ years. It is argued that this very lack of specificity conveys considerable genius on the part of the framers in knowing that they could not predict what the future would bring. At the same time, there is an equally strong argument that tradition and stability of law has contributed significantly to the perseverance of the US as a nation.
Bearing in mind these two arguments, it is likely in the discussion between the living document and strict constructionism the truth, as is often the case, lies somewhere in the middle. So the label “activist judge” is often based on the view of the critic. If a judge rules in a manner in which you agree, they are likely a strict constructionist and are staying true to the intent of the US Constitution. If you do not like the ruling then they are clearly an activist judge and are running roughshod over the constitution.
About The Author: Chuck Hyde is editor of StandBesideHer.com. He is also a husband and father of two teenage boys and a younger daughter. His family lives in the northern Midwestern rural United States, where they enjoy camping, fishing, and other outdoor activities together. Chuck is a Registered Nurse in an inner city emergency room and has had a lifelong addiction to politics.
COMMENTS: Do you have a comment about this editorial?
Email Chuck here
to share it.
