Judicial ReEngineering

20011
PROPER JUDICIAL ACTIVISM
represents a primary way that judicial review can be legitimate.
Excessive activism, as we have seen, produces grave consequences.
First, there is concern that the Court may sacrifice the power of
legitimacy that attaches to decisions within the traditional judicial
sphere rendered on the basis of conventional legal criteria, and so may
disable itself from performing the narrower but none the less vital
constitutional role that all assign to it. Second, there is fear that
excessive reliance on the courts instead of self-government through
democratic processes may deaden a people's sense of moral and
political responsibility for their own future, especially in matters of
liberty, and may stunt the growth of political capacity that results
from the exercise of the ultimate power of decision. 217
This article does not seek to push judicial activism to the point that
these concerns will come to fruition. Rather, it proposes a partial
antidote to these problems. First, by starting with the founding
principles of this republic: man is fallen; this is a government of laws,
not of men; we have a written constitution; no man is allowed to be the
judge in his own cause; concentration of political power means tyranny;
and the recognition that no dichotomy exists between structure and our
sacred rights, any temptation to place excessive reliance on the courts
instead of self-government is overcome. Second, by recognition of an
adherence to what are the key structures in our system: separation of
powers and federalism. Adherence to these key structures prevents the
courts from whittling away their legitimacy, and focuses their powers on
the narrower, but vital, constitutional role assigned to them.
Proper judicial activism does not threaten the republic; it emboldens
it. When activism leaches into an improper sphere, as it is bound to do, it
remains for us to pull it back, and to remind the judiciary that we are a
government of laws, not of men. While judges may interpret the law,
they are not the law themselves; and when they attempt to equate
themselves to the law, as they do when basing decisions upon their
consciences rather than the Constitution, it is up to us to call them on
the carpet, and point them back to the Text. Respect for the system and
a desire to protect liberty demand no less of us, and proper judicial
activism demands no less a fidelity from judges.
217 COX, supra note 157, at 103.
HeinOnline -- 14 Regent U. L. Rev. 179 2001-2002