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"Judicial activism’ turns Constitution upside down

State Sen. Mark Hillman

Widespread confusion regarding the limits of the Supreme Court’s legitimate authority in our Constitutional system is largely the result of the justices reaching beyond their duty to interpret laws and, instead, re-defining those laws – i.e., legislating from the bench or “judicial activism.”

Most of us were taught in high school government class about the three branches of government and their respective rolls.

The legislative branch makes the law.

The executive branch enforces the law.

The judicial branch interprets the law.

This “separation of powers” is intended to limit the authority of each branch of government and bar each from accumulating too much power.

Duties of the judicial branch, as defined by our Founding Fathers, are relatively few. Alexander Hamilton, in Federalist No. 78, called the judicial “the weakest of the three branches:” restraining the other branches from exceeding their defined powers is a chief responsibility.

Liberals have begun to co-opt the term “judicial activism” by applying it to decisions that they don’t like, such as Bush v. Gore, in which the U.S. Supreme Court stopped the Florida supreme court from disregarding its own state law.

Although the justices split 5-4 as to the remedy, seven of nine agreed that the Florida court was wrong.

So, consider two of the U.S. Supreme Court’s recent decisions and their impact on our constitutional system:

n In a case dealing with admission policies at the University of Michigan, the court allowed racial discrimination when instituted to promote “student body diversity” to enhance the learning experience of students.

n In Lawrence v. Texas, the Supreme Court ruled that the 13 states that still prohibit sodomy may no longer do so, finding that the unwritten “right to privacy” trumps the authority of 50 states governing themselves.

States have prohibited sodomy without interference by the Supreme Court since the Constitution was ratified, and no amendment to prohibit such laws has been added. It’s illogical, then, to say such laws are unconstitutional.

It’s much more obvious that the court majority simply undertook surreptitiously and undemocratically to amend the Constitution because some justices don’t approve of anti-sodomy laws.

The doctrine that says states are free to enact – or not to enact – whatever laws they choose is called “federalism,” embodied in the Tenth Amendment which restrains states only from enacting laws which violate the Constitutional rights of citizens or the Constitutional authority given to Congress.

Nothing requires that all states have similar laws; otherwise state boundaries would be meaningless, and Congress would enact all laws.

Because the constitution says nothing about a right to sodomy or any type of sexual behavior, past Supreme Court justices wouldn’t strike down state laws. But by “discovering” that the Constitution now shields sodomy, the court placed anti-sodomy laws beyond the reach of legislators or voters.

By contrast, when the court upheld Michigan’s racial preference system, it ruled only that racial preferences are allowable – not mandatory. This distinction apparently escaped some journalists when, in the ensuing days, Governor Bill Owens expressed his interest in legislation to require color-blind admissions policies.

One report said the lawmakers are considering legislation “despite a recent U.S. Supreme Court decision” – implying that legislation would be contrary to the court’s ruling. A misinformed commentator elsewhere complained that such a law “will be overturned S but not before thousands of our taxpayer dollars are wasted.”

Finally, chew on this irony: these two rulings struck down laws enacted by democratically-elected legislatures but upheld the authority of an unelected college admission board to ignore the U.S. Constitution and treat people unequally because of their skin color.

If that’s not a Constitutional crisis, I can’t imagine what is.

State Sen. Mark Hillman (R-Burlington) is a member of the Senate Judiciary Committee. His e-mail address is mail@markhillman.com.


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