Activism from the left also taints judiciary |

Activism from the left also taints judiciary

Mark Hillman

Complaints about judicial activism or judges “legislating from the bench” are frequently dismissed as nothing more than Republicans complaining when they don’t get their way. However, as former Harvard law professor and Supreme Court nominee Robert Bork has explained, adhering to the plain language of the law doesn’t always produce a conservative outcome.Indeed, conservative judicial activism – while comparatively rare – is just as odious to our constitutional principles of self-government as liberal judicial activism because both represent the judiciary usurping constitutional authority that is specifically delegated by the people to the Legislature.Two cases, in particular, illustrate that adhering to a “strict constructionist” philosophy and upholding the law’s original intent will not necessarily yield an outcome favored by conservatives.In State Farm vs. Campbell (2003), the U.S. Supreme Court ruled that punitive damages are likely to be unconstitutional if they exceed the actual damages by a ratio of more than 9-to-1. In this case, Curtis Campbell was awarded $2.6 million in economic (or actual) damages and $145 million in punitive damages.

Although the court split 6-3, two of three dissenters – Antonin Scalia and Clarence Thomas – are strict constructionists who may well have considered the $145 million award to be excessive but found nothing in the Constitution to prohibit such an award.Many conservative proponents of legal reform hailed the decision as a victory for common sense and an important strike against abusive lawsuits. Since limiting lawsuit abuse has been one of my legislative priorities, I might be expected to applaud this decision, too.But frankly, I find nothing in the U.S. Constitution that remotely intimates that the founders intended to address this issue whatsoever.State legislatures certainly have the prerogative to establish limits on punitive damages, and many have done so. Still, a plaintiff’s attorney looking for a big payday will try to find a reason to file suit in a state without such limits.Businesses that operate in many states would, therefore, prefer that Congress use its authority to “regulate commerce … among the several states” to enact federal reforms, but they haven’t yet mustered the votes to do so.

Federal officials have, however, acted to prohibit the use of marijuana and other drugs, but their constitutional authority to do that is being questioned in Ashcroft vs. Raich, a case now under consideration by the Supreme Court.The question is whether citizens in 11 states, including Colorado, which voted to legalize medical marijuana, can be prosecuted under federal law for growing, possessing and using marijuana. Plaintiffs argue that growing and using marijuana in their own home is not interstate commerce, and that Congress has no authority to regulate commerce which doesn’t cross state lines.The plain language of the constitution clearly supports their argument, but the precedent set by earlier court decisions cuts against them.In Wickard vs. Filburn (1942), the U.S. Supreme Court ruled that the federal government could restrict a farmer’s ability to grow wheat on his own farm. Filburn, a small farmer in Ohio, was permitted by the federal government to grow only 11.1 acres of wheat.

Instead, he grew and harvested 23 acres, and the USDA penalized him. Filburn argued that because the wheat never left his farm it couldn’t be considered interstate commerce and couldn’t be regulated by Congress.However, the Supreme Court ruled that Congress could limit Filburn’s wheat production because it had an indirect but “substantial economic effect on interstate commerce.”Clearly many conservatives applaud attempts to limit outrageous verdicts and restrict drug use. However, if the plain language of the Constitution is to carry any weight when we agree with what it says, it must be afforded the same deference when we disagree.State Sen. Mark Hillman (R-Burlington) is the Republican Leader of the Colorado Senate. His e-mail address is

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