Judicial Activism Will Destroy Our Country


Black’s Law Dictionary defines judicial activism as “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.” (Source:  Wikipedia)

Basically, it means the misuse of judicial power.  This misuse of power happens anytime judges decide to make law instead of interpret law.  Our Constitution does NOT give the judicial branch of our government the power to make laws.  Article 1, Section 1 of the US Constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article 3 of the US Constitution sets up and defines the power of the Judicial Branch of out government and nowhere does it give them the power to make law.

Before going any further, I must acknowledge the main objection many would mention at this point.  They would say that we have case law made everyday.  They would be correct but only in a sense.  Case law is basically a collection of interpretations of existing laws.  It should not create new laws that have not been through the proper legislative process.

The problem we face today is that we have courts (meaning judges) all over our country (at all levels) who have taken it upon themselves to overstep their constitutional authority and make laws based what the judges think should happen.  This is judicial activism and it will destroy our country.  As an example of how bad it has gotten I refer you to a recent editorial published by The Washington Times called Judicial Imperialism.

This article highlights two recent events of judicial activism.  Both involve judges furthering the gay agenda.  Both are worthy of mention but I am only going to focus on one in this post.  In California, the voters just passed a constitutional amendment (known as Proposition 8) defining marriage as being between one man and one woman.  This is the second time (Proposition 22 in 2000) a similar proposition has passed in California although the first was not a constitutional amendment.  The May 2008, the California Supreme Court ruled that Proposition 22 violated the state Constitution and was therefore invalid.  As such, the Court overturned the will of the people.  The people then proposed the constitutional amendment via Proposition 8.  It passed.

Now, it would seem the issue is settled.  The people of California have amended their state constitution to define marriage in the way they want.  It should be up to the judges to now interpret the laws in relation to what the state constitution says.  Not so fast, says the California Supreme Court.  The editorial explains the situation this way:

California voters passed Proposition 8, an amendment to the state constitution saying that the only “valid or recognized” marriages are between a man and a woman. Voters effectively reversed a California Supreme Court ruling that legalized that same-sex marriage – contrary to an earlier state-constitutional amendment passed by voters. Now the California Supreme Court is firing back. It has decided to hear arguments that, in effect, the constitutional amendment is unconstitutional.  (Emphasis added by Tom)

I can’t help but ask the obvious question.  How can a constitutional amendment, which has been passed following the prescribed methods to amend the constitution, be said to be unconstitutional?  On what basis can such a claim be made?  They can’t appeal to the state constitution because it now contains the provision in question.  By definition, the amendment would now have to be deemed constitutional.

The article points out the those wanting to invalidate the constitutional amendment will base their argument on the fact that “voters decided on a question that they were not supposed to decide on”.  This is a huge stretch.  It should be thrown out.  The problem is that this challenge will almost certainly end up in the 9th Circuit Court of Appeals.  This is court is widely known for how liberal it is.  The judges there are definitely not strict constructionists.  If a single judge, or even a group of judges, seek to invalidate the will of the people in this situation then that will be an example of judicial activism.

What can be done about judicial activism?  At this point in time, I am not sure that it can be corrected.  We have gone very far down this slippery slope and maybe too far to ever recover.  The only possible hope is for the judiciary to be returned to it’s constitutional authority in which it seeks only to interpret laws and not impose the will of the individual judges on the people.  I do not know how to do this.  I don’t have much hope of ever getting back to this.  If you have any ideas, leave then in the comments section and we can discuss them.


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3 Responses to “Judicial Activism Will Destroy Our Country”

  1. l3rucewayne Says:

    This really burns me up, what can be done if they overturn prop 8 as well? Can the judges be physically removed by the people or perhaps arrested or voted out of office? Do they have life appointments like the supreme court? I heard an interesting point on this topic, if the judges rule against the state constitution, then where are they deriving their authority from if not the state constitution?

  2. Brett Says:

    Unbelievable. Unbelievable. U. N. B. E. L. I. E. V. A. B. L. E.

    I’m starting to believe the United States of America will not be in existence in 20-30 years. I never dreamed it would happen, but now I honestly do not see how it won’t happen. I’m afraid we are already in self-destruct mode.

  3. Tom Shelton Says:


    I agree completely. I saw a news article posted on Drudge last week where a Russian official (I can’t remember what title he had) was predicting that the United States will not exist in it current form much longer. He predicted the U.S. would break up into 6 smaller independent countries. Sadly, I think he might be right. I don’t know if I would agree with him on how quickly it will happen but I could definitely see it happening.

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