Judicial ReEngineering

2001]
PROPER JUDICIAL ACTIVISM
the unjust law, protecting the citizenry. Additionally, since the judicial
department in such a system is separate and independent from the other
two, it could declare the law void and have it thrown out altogether,
using the power of judicial review.
Of course, that is the theory. As the Supreme Court has noted, for
the Founders, "[Tihe doctrine of separation of powers was not mere
theory; it was a felt necessity." 58 Therefore, Madison and the others
believed that "a mere demarkation [sic] on parchment of the
constitutional limits of the several departments, is not a sufficient guard
against those encroachments which lead to a tyrannical concentration of
all the powers of government in the same hands." 59 They needed more
than the words in the Constitution to insure that this vital principle
would be observed. To that end, the Founders included what have
become known as checks and balances in the framework of the
Constitution. The goal was a government where "the powers of
government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without
being effectually checked and restrained by the others." 60 When Madison
said, "[aimbition must be made to counteract ambition," 61 he meant, in
part, that each branch should watch the others. Thus, we have the
Presidential veto, Senate confirmation of Presidential appointments,
judicial appointments by the President, and so on. "[The Constitution]
enjoins upon its branches separateness but interdependence, autonomy
but reciprocity." 62
The Founders were attacked for this "mixture" of powers, so
ingrained was the idea of separation in the minds of the people.63 Yet,
because they believed that the doctrine needed to be more than a
"parchment barrier," the Founders stuck to their proposal.
The men who met in Philadelphia in the summer of 1787 were
practical statesmen, experienced in politics, who viewed the principle
of separation of powers as a vital check against tyranny. But they
likewise saw that a hermetic sealing off of the three branches of
58 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter,
J., concurring).
59 THE FEDERALIST No. 48 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 141.
60 Id. at 139.
61 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 164.
62 Youngstown Sheet & Tube Co., 343 U.S. at 635 (Jackson, J., concurring).
63 See, e.g., Reply to Wilson's Speech: "Centinel"[Samuel Bryan] 11 (1787), in 1
DEBATES, supra note 26, at 77, 87; Reply to Wilson's Speech: "Cincinnatus"[Arthur Lee] V
(1787), in 1 DEBATES, supra note 26, at 114, 117; Joseph Spencer to James Madison,
Enclosing John Leland's Objections (1788), in 2 DEBATES, supra note 26, at 267, 269.
HeinOnline -- 14 Regent U. L. Rev. 151 2001-2002