It is quite common these days to hear accusations made about “activist” judges who legislate from the bench, who don’t adhere to the Constitution, and who believe that these judges intentionally stray from the original intent of the Founding Fathers. I have even seen this argument made from candidates vying for a seat on the traffic court, where I am unaware of any Constitutional issues beyond some very basic issues involving criminal procedure.
Several things are remarkable about this belief. For one, the Constitutional convention was very divided and divisive. You can look to the Founding Fathers who participated in the convention, but you won’t find much, if any, unanimity among them. So I’m not sure how one divines “original intent” from a disparate group. For those literalists who subscribe to the belief that judges need to adhere to original intent, I am going to cite just a few examples of how this can be an imposing task. The Constitution makes no mention of an Air Force. It only provides for the power to establish and maintain an army and navy. There is nothing said about a draft, yet this country has drafted citizens into the armed forces. What does Equal Protection mean? There is nothing to prohibit “separate but equal” in the Constitution, but how many would advocate going back to that doctrine? What does cruel and unusual punishment mean? How about due process? And much more….
If it was so easy to read the Constitution and understand exactly what it says in all instances, we wouldn’t need but one appellate court and one judge. As it is we have a number of appellate courts on the state and federal levels, and nine justices on the Supreme Court. And we all know that the composition of the Supreme Court at any given time in history has never been unanimous in each decision. All we can hope for is intellectually honest judges who really try to interpret the Constitution through a lot of case law handed down for more than 200 years. I believe that most judges try to get it right, to work toward the elusive goal of truth, always getting a little closer with each controversy. And I also believe in the rule of law, that regardless of whether we agree with a court’s decision, we are duty bound as Americans to adhere to it unless and until the legislative process changes it.