Judicial ReEngineering

REGENT UNIVERSITY LAW REVIEW
[Vol. 14:141
V. CONCLUSION
In evaluating the role of the federal judiciary in our system and,
more specifically, the proper place for judicial activism in the courts, it
must be remembered that, with the passage of the Constitution, the
Founders implemented a novus ordo seclorum: a new order for the
ages. 21 3 The Founders turned the political ideas of the world on their
head. Virtually everyone believed that sovereignty must reside in only
one governmental body, but the Founders divided it between the Federal
and State levels. Most said that the separation of powers required that
the branches of government must be completely separate, but the
Founders split them while providing checks and balances. Conventional
wisdom held that the legislature had to have the final say in what the
laws would be, but the Founders made the People the final arbiters of
the law, through the Constitution. This was not a republic in any of the
ordinary senses of the term. 21 4 Judicial review was part of this new
order, because of the Founder's emphasis on a written Constitution. So,
if it seems that judicial review is a unique tool, it is because it truly is,
and like any of our tools, in the hands of corrupt man it can be misused.
The Founders knew these things, and knew that if this new order was to
succeed, it would require the ongoing vigilance of the government by the
governed. This is why "[w]hen Americans stop arguing about legitimacy,
about just government derived from the consent of the governed, and
about the relationship between laws and higher law, this country will
have turned out to be something very different from what the Founders
intended. 215
"Limiting the federal judiciary, including the Supreme Court, to its
proper Constitutional role thus is a vital liberty issue." 216 This article has
sought to describe some of that proper role, where it concerns the
dangerous but necessary duty of judicial activism. The premise has been
that the structure of the Constitution deserves and demands the main
focus of the Supreme Court, because its fundamental role in our system
213 MCDONALD, supra note 82, at 262.
214 Id. at 287.
That government defied categorization by any existing nomenclature: it
was not a monarchy, nor an aristocracy, nor a democracy, neither yet was it
a mixed form of government, nor yet a confederated republic. It was what it
was, and if Madison was presumptuous in appropriating the word republic
to describe it, he was also a prophet, for thenceforth republic would mean
precisely what Madison said it meant.
Id.
215 Richard John Neuhaus, Preface to THE END OF DEMOCRACY, supra note 162, at
ix.
216 Edwin Meese III, A Return to Constitutional Interpretation from Judicial
Lawmaking, 40 N.Y.L. SCH. L. REV. 925, 932-33 (1996).
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