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Judicial Activism, The struggle for the people

Updated on October 21, 2014

Same Sex Marriage in Utah

The Arguement

Since the United States was created, the citizens have lived under the protection of what is called “constitutional” rights. Originally they were based off of a humans basic freedoms, such as speech and press. After time, society has come to add amendments and laws to refine what is allowed in America. The checks and balance system that the country has strived towards, was made to make sure these new amendments were all according to those original rights. After many years society has seen many mistakes and laws get passed by the people just to get overturned by state or federal judges on the account that they were “unconstitutional”. Although many people believe that these in higher office have the right to decide laws for the masses, they forget the judges own opinions, the morals of the masses, and what democracy truly is.

In 2004, 66 percent of Utah voted to ban same-sex marriage. An issue that in recent years has grown so much as to lead the forefront of all issues. Fewer things in politics right now are as politically charged as this. Many believed that after the amendment was established this issue had been settled in Utah. That was until December of 2013, when federal judge Robert Shelby overturned the law because it “demean[s] the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional”. Judge Shelby probably had many reasons to overturn this decision, but according to the United States Census Bureau, Utah has a population of 2.85 million people. Not all of these people voted, but the vote is supposed to represent the view of the masses. That means that 1.88 million citizens in the state of Utah were in favor of the 2004 ban on same-sex marriage. This raises the question of how much more knowledge or right does Judge Shelby have concerning the moral matter of same-sex than the 2.85 million people in Utah? Is this not the same government that Abraham Lincoln called the “government of the people, by the people, for the people” in his Gettysburg Address?

The problem of Judges overturning decisions voted on by states is not a new thing. Looking back over the past 70 years, many judges have changed the decisions like the one overturned in Utah. Many of those decisions were on very crucial debates and were to the opposing view of the populous. In a scholarly journal written by Kenneth Miller he talks about the problems of Judicial activism, which in the Glossary of Political Economy terms is described as “the view that the Supreme court justices (and even other lower-ranking judges as well) can and should creatively interpret the texts of the Constitution and the laws in order to serve the judges’ own considered estimates of the vital needs of contemporary society”. Just like Miller talks about in his article, if we take the main issues, like we talked about earlier with same-sex marriage, and add in other issues such as abortion and racial segregation, then we can find some really interesting decisions brought up by our courts system.

The Supreme Court Justices

One Side of the Case

First of all, to show the difference in the ways the court officials and the way the public think, Miller shows the contrast in beliefs as far as same-sex marriage. Earlier one case was shown of what happened in Utah. Miller tells about an amendment that was voted on by the state of Hawaii to ban same-sex marriage. The amendment was passed and they state began to deny homosexuals the right to marry one another. Just like the case in Utah, the Hawaiian judges decided it was not in accordance with their state constitution. “The legislature and the people resisted the decision.” They ended up drafting “an amendment to the state constitution to override the court by specifically authorizing the statuary limitation of marriage to a man and a woman, and Hawaii voters approved the amendment by a 69.2 to 28.6 percent margin.” In the future 31 states would go on to approve similar amendments to their constitutions.

In 1973, the U.S. Supreme Court ruled in favor of Roe v. Wade giving the right of abortion to the mothers as a “right of privacy”. Although believing that this decision would settle the debate over abortion, it has since intensified. Since the decision twenty-one states have qualified “state constitutional amendments seeking to eliminate or limit state constitutional rights to abortion”. Not all were accepted by the people, but many were adopted by the states.

As for the issue of racial desegregation, Miller focuses on what happened in the education system. In the 1970’s the Supreme Court reviewed a series of cases in which racial segregation in schools had been a problem. The Court concluded that the school weren’t segregated on base of race, but more on “residential patterns”. This distinction by the court allowed the schools to stay segregated. As Miller continues he says, “California’s high court was committed to the view that racial imbalances in public school districts were unconstitutional no matter the cause”. In the end, although the U.S. Supreme Court would not allow the change, “the California Supreme Court turned to its state constitution’s equal protection provision to mandate the opposite result.”

All three of these rulings by the U.S. Supreme Court show different ways that the people had to reach the outcome that they wanted. In the first case dealing with same-sex marriage, luckily the people had voted in the right legislature. Through the legislature they were able to overturn the laws that were set by the court. The vote by the people should be enough of a say to put a stamp of approval on the amendment. This decision really shows the distinction between the court and the people. Although the ruling of same-sex marriage is one that is more of moral belief, how can one decide if it is right or wrong? In a country that is founded so much on religion and yet it is about every man having his or her own rights and liberties, where do you find the line of acceptance?

When it comes down to moral laws, the people are the ones who will live with it and as such should be the ones who decide on such matter. In an article from the Florida Journal of Law, they talk about the outcomes of Proposition 8 in California. An amendment that was presented to limit marriage to stay between just a man and a woman. After voting and being in favor of making the law it was soon after overturned by a Judge. In the article it explains the reaction of those who had voted and won the original vote. Stating that “the single vote of an active federal judge” has now “forced these citizens to confront and endure widespread social effects that they voted to steer clear of.” If you were in their situation would you be as likely to vote on a big issue the next time it arise? What are the chances that it too will be overturned? Why even hold a vote at all if in the end a judge will just change your decision?

The last case, in which Miller presents in his article, was the most interesting to me. Most people would agree that the most substantial move forward in this country within the last century would be the civil rights movement. Those rights given to all men equally was fought over and won, now proven constitutional. What a step backwards though the U.S. Supreme Court shows by trying to keep the schools segregated. Sure the idea is understandable that the bus routes might be easier or it may be closer for some people, but an automatic question was brought to mind when reading this decision, how much better would the white school quality of teaching by than the other school? When studying the demographics of the city, the African Americans all lived in a certain area together because their economic resources weren’t that of the White population. Thus the struggle would’ve continued and the poor education would’ve kept the races separated.


Lincoln vs. Hitler

The Elitist Theory

There is of course another side to this argument. The Minorities voice must also be heard. This country was also founded on letting the minorities get their votes counted too. Everyone wants to be heard and given his or her own “god given right”, but to what extent is that permissible? Looking back to the 1860’s when African Americans were looking for their rights anyone could imagine what would have happened if they would’ve held a vote. African Americans wouldn’t have received their right to vote. Of course that is where the elites of society must take a step in and take charge and make the right decision.

The elitist theory is a very popular view for many reasons. Although democracy sounds great in theory, it is very hard to control with a wide variety of people and with very large masses. Robert Michels had a very strong view of Oligarchy and believed that is was even a time waster trying to get everyone individually heard. In an article about Robert Michels, Oscar Grusky talks about how difficult the democratic ideals are and that in the end even for Spain it demanded “a system of popular representation and a parliamentary state.” He explains that “the chief is merely the servant of the mass”. All of these men are subject to the masses until they do something wrong and therefore taken out by the same people that put them in.

In a perfect world these men would be put under scrutiny and reviewed by the masses and if something truly wrong happened the public would get the right to get them out, but for every Abraham Lincoln there is an Adolf Hitler. Just like Hitler many other men have turned governments into socialist and fascist countries in a short matter of time. Even in the United States government these men aren’t truly subject to the masses, which in reality don’t even vote them in, but they are subject to the interest groups which fund their campaigns. How many of these men that run for office are steered by their own moral compass or are directed like a hot air balloon which way to go?

Like stated earlier, the elites would be able to give voice to the few. This is because they could more likely steer the whole entity in the same direction. Grunsky, goes on to talk about the qualities requisite to leadership. He states such things as “beauty and strength of voice, suppleness of mind” to name a few. Even he goes on to say that “unquestionably, the fascination exercised by the beauty of a sonorous eloquence is often, for the masses, no more than the prelude to a long series of disillusionments”. It would seem as though the majority of our leaders may only be more charismatic than the rest of the people. How many of these people that take office, actually don’t have any better knowledge base than the common citizen?

In accordance with what was just stated, Jack Walker of the American Political Science Association brings up the point that every social movement starts out with a lot of dissatisfaction, but that is never enough. Although that will cause some stir in the people, it takes “the existence of potential leadership which can motivate a group to take action designed to change the offending circumstances”. This is very true and in a true democracy the leadership is an important part of keeping organization and keeping the country out of anarchy.

To that same extent Walker writes, “The democratic system must rely on the wisdom, loyalty and skill of their political leaders, not on the population at large.” He encourages the competition of the elites in society. Arguing that if the elites in a democracy don’t live up to these disillusionments that Grunsky had talked about, than they will get replaced.

Many believe that these elites, especially those in the judiciary section, should use their wisdom and explore what is constitutional and what isn’t. Randy Barnett of the Washington post referred to this as “judicial engagement”. He argues that the judges shouldn’t restrain themselves and “close their eyes”, but “should be restrained to follow the constitution, properly interpreted, whether that leads to upholding or invalidating legislature.” These judges even go on to take power from the other branches. “Activism is an assertion of power by the judicial branch at the expense of a coequal branch like the legislarure or the executive” Justice Thomas R. Lee explains in his article Restraint, & the Rule of Law.



The Masses

As you can see leadership is not a bad thing and just like any little organization or club needs a president, so does the United States. The question then arises of how much power should they be given to control society? Barnett talks about how these men should have the right to interpret the constitution, but what more right does he have than anyone else? Even within these elites the distribution of power becomes hard to handle.

Walker states that “the average citizen still has some measure of effective political power… because of his right to vote”, but what happens when the “average citizens” right to vote ends up getting overturned on the issues that matter most to the individuals? What will be the likeliness of the citizen coming back to vote? On the website of the office of the Secretary of State, it calculates that only 60 percent of voting age population in the United States voted during the Presidential elections in 2012. If our society is always so split on the voting, just imagine how much the vote would probably be swayed if the other 40 percent lifted up their voices and voted. Meanwhile in the elections in 1952, between Dwight D. Eisenhower and Adlai Stevenson, 72 percent of people in the voting age voted for president. That’s a 12 percent decrease in just 60 years.

Just as there are issues concerning the power of the leadership, the amount of power given to the masses and in particular the majority voters is a concern. Kenneth Jost, a writer for the CQ Researcher, wrote about the struggles of those pro-same-sex marriage. He brings up the point that “you amend constitutions to carve out a group of people, shove them outside, and say they can’t go to the legislature, that they are permanently treated as second class by the constitution where they live.” What if the majority rules on everything and in the end does “carve out” the smaller groups? Is that not what happened for centuries with slavery? In another article by Jost he states that these laws passed by the people weren’t good decisions. Backing up the view of the elitist theory referring to the laws as poor decisions. He reinforces this argument in an article about Chief Justice William H Rehnquist. Fortunately Chief Justice Rehnquist “has struck down parts of 40 laws – a quarter of the 160 such decisions handed down throughout U.S. history.”

Although this is a great view, Jost is on the pure basis that people do not change. Has time not cured problems and is there not a black president in America today? In the moment things look hard, but people change and they grow accustomed to things and although it took time, African Americans got their rights. Just like them, the LGBT will get what they want, which is the right to marry one another.


Chief Justice William Rehnquist

The Laws Pushed on us

As mentioned earlier, abortion has been an ever-rising issue in the country. Why that part of the article is so intriguing is the opposing take that it brings with this marriage issue also. In both they were ruled by the court to go against previous laws, in both there were drafts of amendments made to overturn the laws by the court, yet they come with different outcomes. Although many of these people who want to keep the laws how they have always been would be considered conservatizes, if the same state can rule that same-sex marriage is not allowed, yet a certain extent of abortion (which most would consider to be the minority) is, then it would seem that an equal amount of people are getting their voice out.

Luckily, in all of the decisions which we have thus far talked about, which I would regard as “moral laws”, people have the right to overturn what the judge’s rule. This is called the right of referendum. On the National Conference of State Legislatures website it calls an initiative, “a process that enables citizens to bypass their state legislature.” This right returns much of the power back to the citizens, but how strong is this initiative and how much longer will society allow it?

Through all this research it shows how people have gotten disgruntled with the way the government has been lead. New laws getting piled on to the people, such as ObamaCare, without the people even being able to vote for them. After the judge oferturned proposition 8, the Florida Journal of Law wrote about the struggles for people living in the state who had worked so hard to get the amendment passed. One man talked about how he felt the courts stance is an attack on what America is and what is “constitutional. He states that the case that was posed, was very well-crafted by the pro-same-sex marriage side, but that in the end it was the judges exercising too much power.” The article explains how this decision “forced these citizens to confront and endure widespread social effects that they voted to steer clear of.” Voting will continue to decrease until there are changes. Then how as a country can it be changed to give the power back to the people, have order and keep a check and balance system?


My Solution -The Ten Years Law

To help with this solution I have come up with some conclusions, but in order to understand them one must understand what a “moral law”. When reviewing whether the judges have the right to overturn the laws, people debate if its within their rights to overturn it. Like mentioned earlier, many of these judges have to put in their own beliefs into their decisions. Sure, many of these men are more educated than the average American, but what can school teach you about whether same-sex marriage is right or wrong? Can pure knowledge tell you that killing a fetus after three months is actually ok? Many of these issues are based off of a humans basic beliefs and cannot be learned in a class room. Therefore it should not be the more knowledgeable who decide such things. Rather it should be those who live with these decisions. A moral law is a law that is for the protection of one’s beliefs, usually religious or innate, that is subject to change as society adapts and increases. These issues are usually the most politically charged.

To help fulfill all of these requests I propose a new law. I call it “the Ten Years Law”. What it entails is that everyone will get the opportunity every ten years to vote on these “moral laws”. When first presenting the law wanting to be passed, the Supreme Courts will be able to review the law or amendment and see if it is constitutional. Then having made sure it is and having been voted in by the majority, then within the next ten years these laws cannot be changed nor overturned. Returning full power back to the people, but still allowing for social change. After ten years each state would return to vote on these laws. Just like how states vote for senators every two years or the President every four, they will be able to vote for issues that more immediately affect them.

For example, right now in many of the states’ same-sex marriage wouldn’t be illegal. In ten years though all the states could return to review their previous decision and hopefully if it for a good cause, society can make the correct changes to advance forward. In a blog written by Peter Lawler, a Professor at Acton University, he writes how he believes that same-sex marriage wasn’t constitutional, but with time now is. That just like humans evolve, so does society. If the country would’ve had this in the 1800’s, maybe African Americans wouldn’t have gotten there right so quick, but maybe they would’ve gotten it quicker.

If right now people thought about the issues most important to them; gun rights, capital punishment, racial segregation; and thought about how their vote would change the society for the next ten years on the matter, how much more inclined would they be to vote? Knowing that their vote could not be overturned would prove to be beneficial in the minds of the public.

This law will also relieve the court justices from a lot of scrutiny, but also allow them to keep their part in the big picture. Keeping the original checks and balance system that the country was founded on.

In conclusion, through the years we have seen too many important laws get overturned by those in office. Although many people believe that these in higher office have the right to decide laws for the masses, they forget the judges own opinions, the morals of the masses, and what democracy truly is. By putting in place the Ten Years Law, everyone will feel like they have a place and can get their voice heard. Returning to form as it says in the constitution and allowing, how it says, “We the people of the United States, in Order to form a more perfect Union, establish Justice… and secure the blessing of Liberty to ourselves and our Posterity.”

Would it work?

Do you feel as though the Ten Years Law would be positive change and work?

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